# National Environmental Policy Act Implementing Regulations Revisions Phase 2

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-15405

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** July 31, 2023
- **Citation:** 88 FR 49924

## Text

COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and 1508
[CEQ-2023-0003]
RIN 0331-AA07
National Environmental Policy Act Implementing Regulations Revisions Phase 2

AGENCY:

Council on Environmental Quality.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Council on Environmental Quality (CEQ) is proposing this “Bipartisan Permitting Reform Implementation Rule” to revise its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA), including to implement the Fiscal Responsibility Act's amendments to NEPA. CEQ proposes the revisions to provide for an effective environmental review process that promotes better decision making; ensure full and fair public involvement; provide for an efficient process and regulatory certainty; and provide for sound decision making grounded in science, including consideration of relevant environmental, climate change, and environmental justice effects. CEQ proposes these changes to better align the provisions with CEQ's extensive experience implementing NEPA; CEQ's perspective on how NEPA can best inform agency decision making; longstanding Federal agency experience and practice; NEPA's statutory text and purpose, including making decisions informed by science; and case law interpreting NEPA's requirements. CEQ invites comments on the proposed revisions.

DATES:

Comments:
CEQ must receive comments by September 29, 2023.

Public meetings:
CEQ will conduct four virtual public meetings for the proposed rule on Saturday, August 26, 2023, from 1 p.m. to 4 p.m. EDT; Wednesday, August 30, 2023, from 5 p.m. to 8 p.m. EDT; Monday, September 11, 2023, from 1 p.m. to 4 p.m. EDT; and Thursday, September 21, 2023, from 2 p.m. to 5 p.m. EDT. For additional information and to register for the meetings, please visit CEQ's website at
www.nepa.gov.

ADDRESSES:

You may submit comments, identified by docket number CEQ-2023-0003, by any of the following methods:

•
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.

•
Fax:
202-456-6546.

•
Mail:
Council on Environmental Quality, 730 Jackson Place NW, Washington, DC 20503.

Instructions:
All submissions received must include the agency name, “Council on Environmental Quality,” and docket number, CEQ-2023-0003, for this rulemaking. All comments received will be posted without change to
https://www.regulations.gov,
including any personal information provided. Please do not submit electronically any information you consider private, Confidential Business Information (CBI), or other information, the disclosure of which is restricted by statute.

Docket:
For access to the docket to read background documents or comments received, go to
https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Amy B. Coyle, Deputy General Counsel, 202-395-5750,
Amy.B.Coyle@ceq.eop.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. NEPA Statute

Congress enacted NEPA in 1969 by a unanimous vote in the Senate and a nearly unanimous vote in the House to declare an ambitious and visionary national policy to promote environmental protection for present and future generations.
1

President Nixon signed NEPA into law on January 1, 1970. NEPA seeks to “encourage productive and enjoyable harmony” between humans and the environment, recognizing the “profound impact” of human activity and the “critical importance of restoring and maintaining environmental quality” to the overall welfare of humankind. 42 U.S.C. 4321, 4331.

1

See
Linda Luther, Cong. Rsch. Serv., RL33152, The National Environmental Policy Act: Background and Implementation, 4 (2008),
https://crsreports.congress.gov/product/details?prodcode=RL33152.

Furthermore, NEPA seeks to promote efforts that will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of people, making it the continuing policy of the Federal Government to use all practicable means and measures to create and maintain conditions under which humans and nature can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations of Americans. 42 U.S.C. 4331(a). It also recognizes that each person should have the opportunity to enjoy a healthy environment and has a responsibility to contribute to the preservation and enhancement of the environment. 42 U.S.C. 4331(c).

NEPA requires Federal agencies to interpret and administer Federal policies, regulations, and laws in accordance with NEPA's policies and to consider environmental values in their decision making. 42 U.S.C. 4332. To that end, section 102(2)(C) of NEPA requires Federal agencies to prepare “detailed statements,” referred to as environmental impact statements (EISs), for “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment” and, in doing so, provide opportunities for public participation to help inform agency decision making. 42 U.S.C. 4332(2)(C). The EIS process embodies the understanding that informed decisions are better decisions and lead to better environmental outcomes when decision makers understand, consider, and publicly disclose environmental effects of their decisions. The EIS process also enriches understanding of the ecological systems and natural resources important to the Nation and helps guide sound decision making, such as decisions on infrastructure and energy development, in line with high-quality information, including the best available science, information and data, as well as the environmental design arts.

In many respects, NEPA was a statute ahead of its time and remains relevant and vital today. It codifies the common-sense idea of “look before you leap” to guide agency decision making, particularly in complex and consequential areas, because conducting sound environmental analysis before agencies take actions reduces conflict and waste in the long run by avoiding unnecessary harm and uninformed decisions.
See, e.g.,
42 U.S.C. 4332. It establishes a framework for agencies to ground decisions in sound science and recognizes that the public may have important ideas and information on how Federal actions can occur in a manner that reduces potential harms and enhances ecological, social, and economic well-being.
See, e.g., id.

On June 3, 2023, President Biden signed the Fiscal Responsibility Act of 2023 (FRA) into law, which included amendments to NEPA. Specifically, the FRA amended section 102(2)(C) and added sections 102(2)(D) through (F) and sections 106 through 111. The amendments in section 102(2)(C) largely codify longstanding principles that EISs

should include discussion of reasonably foreseeable environmental effects of the proposed action, reasonably foreseeable adverse environmental effects that cannot be avoided, and a reasonable range of alternatives to the proposed action. Section 102(2)(D) requires Federal agencies to ensure the professional integrity of the discussion and analysis in an environmental document; section 102(2)(E) requires use of reliable data and resources when carrying out NEPA; and section 102(2)(F) requires agencies to study, develop, and describe technically and economically feasible alternatives.

Section 106 adds provisions for determining the appropriate level of NEPA review. It clarifies that an agency is only required to prepare an environmental document when proposing to take an action that would constitute a final agency action and codifies existing regulations and caselaw that an agency is not required to prepare an environmental document when doing so would clearly and fundamentally conflict with the requirements of another law or a proposed action is non-discretionary. Section 106 also largely codifies the current CEQ regulations and longstanding practice with respect to the use of categorical exclusions (CEs), environmental assessments (EAs), and EISs, as modified by the new provision expressly permitting agencies to adopt CEs from other agencies established in section 109 of NEPA.

Section 107 addresses timely and unified Federal reviews, codifying existing practice with a few minor adjustments, including provisions clarifying lead, joint-lead, and cooperating agency designation, generally requiring development of a single environmental document, directing agencies to develop procedures for project sponsors to prepare EAs and EISs, and prescribing page limits and deadlines similar to current requirements. Section 108 codifies time lengths and circumstances for when agencies can rely on programmatic environmental documents without additional review, and section 109 allows a Federal agency to use another agency's CE. Section 111 adds a variety of definitions. This proposed rule would update the regulations to address how agencies should implement NEPA consistent with the amendments made by the FRA.

B. The Council on Environmental Quality

NEPA established the Council on Environmental Quality (CEQ) in the Executive Office of the President. 42 U.S.C. 4342. For more than 50 years, CEQ has advised presidents on national environmental policy, assisted Federal agencies in their implementation of NEPA, and overseen implementation of a variety of other environmental initiatives from the expeditious and thorough environmental review of infrastructure projects
2

to the sustainability of Federal operations.
3

2

See, e.g.,
E.O. 14008,
Tackling the Climate Crisis at Home and Abroad,
86 FR 7619 (Feb. 1, 2021); E.O. 13604,
Improving Performance of Federal Permitting and Review of Infrastructure Projects,
77 FR 18885 (Mar. 28, 2012); E.O. 13274,
Environmental Stewardship and Transportation Infrastructure Project Reviews,
67 FR 59449 (Sept. 23, 2002);
see also
Modernizing Federal Infrastructure Review and Permitting Regulations, Policies, and Procedures, 78 FR 30733 (May 22, 2013).

3

See, e.g.,
E.O. 14057,
Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability,
86 FR 70935 (Dec. 13, 2021); E.O. 13834,
Efficient Federal Operations,
83 FR 23771 (May 22, 2018); E.O. 13693,
Planning for Federal Sustainability in the Next Decade,
80 FR 15869 (Mar. 25, 2015); E.O. 13514,
Federal Leadership in Environmental, Energy, and Economic Performance,
74 FR 52117 (Oct. 8, 2009); E.O. 13423,
Strengthening Federal Environmental, Energy, and Transportation Management,
72 FR 3919 (Jan. 26, 2007); E.O. 13101,
Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition,
63 FR 49643 (Sept. 16, 1998). For Presidential directives pertaining to other environmental initiatives, see E.O. 13432,
Cooperation Among Agencies in Protecting the Environment With Respect to Greenhouse Gas Emissions From Motor Vehicles, Nonroad Vehicles, and Nonroad Engines,
72 FR 27717 (May 16, 2007) (requiring CEQ and OMB to implement the E.O. and facilitate Federal agency cooperation to reduce greenhouse gas emissions); E.O. 13141,
Environmental Review of Trade Agreements,
64 FR 63169 (Nov. 18, 1999) (requiring CEQ and the U.S. Trade Representative to implement the E.O., which has the purpose of promoting Trade agreements that contribute to sustainable development); E.O. 13061,
Federal Support of Community Efforts Along American Heritage Rivers,
62 FR 48445 (Sept. 15, 1997) (charging CEQ with implementing the American Heritage Rivers initiative); E.O. 13547,
Stewardship of the Ocean, Our Coasts, and the Great Lakes,
75 FR 43023 (Jul. 22, 2010) (directing CEQ to lead the National Ocean Council); E.O. 13112,
Invasive Species,
64 FR 6183 (Feb. 8, 1999) (requiring the Invasive Species Council to consult with CEQ to develop guidance to Federal agencies under NEPA on prevention and control of invasive species).

NEPA charges CEQ with overseeing and guiding NEPA implementation across the Federal Government. In addition to issuing the regulations for implementing NEPA, 40 CFR parts 1500 through 1508 (referred to throughout as “the CEQ regulations”), CEQ has issued guidance on numerous topics related to NEPA review. In 1981, CEQ issued the “Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations,”
4

which CEQ has routinely identified as an invaluable tool for Federal, Tribal, State, and local governments and officials, and members of the public, who have questions about NEPA implementation.

4
CEQ, Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 FR 18026 (Mar. 23, 1981) (“Forty Questions”),
https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act.

CEQ also has issued guidance on a variety of other topics, from scoping to cooperating agencies to consideration of effects.
5

For example, in 1997, CEQ issued guidance documents on the consideration of environmental justice in the NEPA context
6

under Executive Order (E.O.) 12898,
Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,
7

and on analysis of cumulative effects in NEPA reviews,
8

two documents that agencies continue to use today. From 2010 to the present, CEQ developed additional guidance on CEs, mitigation, programmatic reviews, and consideration of greenhouse gas (GHG) emissions in NEPA.
9

To ensure

coordinated environmental review, CEQ has issued guidance to integrate NEPA reviews with other environmental review requirements such as the National Historic Preservation Act, E.O. 11988,
Floodplain Management,
and E.O. 11990,
Protection of Wetlands.
10

Finally, CEQ has provided guidance to ensure efficient and effective environmental reviews, particularly for infrastructure projects.
11

5

See, e.g.,
CEQ, Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping (Apr. 30, 1981),
https://www.energy.gov/nepa/downloads/scoping-guidance-memorandum-general-counsels-nepa-liaisons-and-participants-scoping;
CEQ, Incorporating Biodiversity Considerations Into Environmental Impact Analysis Under the National Environmental Policy Act (Jan. 1993),
https://ceq.doe.gov/publications/incorporating_biodiversity.html;
CEQ, Council on Environmental Quality Guidance on NEPA Analyses for Transboundary Impacts (July 1, 1997),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memorandum-transboundary-impacts-070197.pdf;
CEQ, Designation of Non-Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act (July 28, 1999),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ceqcoop.pdf;
CEQ, Identifying Non-Federal Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act (Sept. 25, 2000),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memo-non-federal-cooperating-agencies-09252000.pdf;
CEQ & DOT Letters on Lead and Cooperating Agency Purpose and Need (May 12, 2003),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-DOT_PurposeNeed_May-2013.pdf.

6
CEQ, Environmental Justice: Guidance under the National Environmental Policy Act (Dec. 10, 1997) (“Environmental Justice Guidance”),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf.

7
E.O. 12898,
Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations,
59 FR 7629 (Feb. 16, 1994).

8
CEQ, Considering Cumulative Effects Under the National Environmental Policy Act (Jan. 1997),
https://ceq.doe.gov/publications/cumulative_effects.html; see also
CEQ, Guidance on the Consideration of Past Actions in Cumulative Effects Analysis (June 24, 2005),
https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf.

9
CEQ, Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act (Nov. 23, 2010) (“CE Guidance”),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf;
CEQ, Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use

of Mitigated Findings of No Significant Impact (Jan. 14, 2011),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf;
CEQ, National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change, 88 FR 1196 (Jan. 9, 2023) (“2023 GHG Guidance”),
https://ceq.doe.gov/guidance/ceq_guidance_nepa-ghg.html.

10
CEQ, Implementation of Executive Order 11988 on Floodplain Management and Executive Order 11990 on Protection of Wetlands (Mar. 21, 1978),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Memorandum-Implementation-of-EO-11988-and-EO-11990-032178.pdf;
CEQ & Advisory Council on Historic Preservation, NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 (Mar. 2013),
https://ceq.doe.gov/docs/ceq-publications/NEPA_NHPA_Section_106_Handbook_Mar2013.pdf.

11

See, e.g.,
CEQ, Improving the Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act (Mar. 6, 2012),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf;
CEQ, Effective Use of Programmatic NEPA Reviews (Dec. 18, 2014) (“Programmatic Guidance”),
https://www.energy.gov/sites/default/files/2016/05/f31/effective_use_of_programmatic_nepa_reviews_18dec2014.pdf;
OMB & CEQ, M-15-20, Guidance Establishing Metrics for the Permitting and Environmental Review of Infrastructure Projects (Sept. 22, 2015),
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2015/m-15-20.pdf;
OMB & CEQ, M-17-14, Guidance to Federal Agencies Regarding the Environmental Review and Authorization Process for Infrastructure Projects (Jan. 13, 2017),
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2017/m-17-14.pdf.

In addition to guidance, CEQ engages frequently with Federal agencies on their implementation of NEPA. First, CEQ is responsible for consulting with all agencies on the development of their NEPA implementing procedures and determining that those procedures conform with NEPA and the CEQ regulations. Through this process, CEQ engages with agencies to understand their specific authorities and programs to ensure agencies integrate consideration of environmental effects into their decision-making processes. Additionally, CEQ provides feedback and recommendations on how agencies may effectively implement NEPA through their procedures.

Second, CEQ consults with agencies on the efficacy and effectiveness of NEPA implementation. Where necessary or appropriate, CEQ engages with agencies on NEPA reviews for specific projects or project types to provide advice and identify any emerging or cross-cutting issues that would benefit from CEQ issuing formal guidance or assisting with coordination. This includes establishing alternative arrangements for compliance with NEPA when agencies encounter emergency situations where they need to act swiftly while also ensuring they meet their NEPA obligations. CEQ also advises on NEPA compliance when agencies are establishing new programs or implementing new statutory authorities. Finally, CEQ helps advance the environmental review process for projects or initiatives deemed important to an administration such as nationally and regionally significant projects, major infrastructure projects, and consideration of climate change-related effects and effects on communities with environmental justice concerns.
12

12

See, e.g.,
Memorandum from President Barack Obama to the Heads of Executive Departments and Agencies,
Speeding Infrastructure Development through More Efficient and Effective Permitting and Environmental Review
(Aug. 31, 2011),
https://obamawhitehouse.archives.gov/the-press-office/2011/08/31/presidential-memorandum-speeding-infrastructure-development-through-more;
E.O. 13807,
Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,
82 FR 40463 (Aug. 24, 2017).

Third, CEQ meets regularly with external stakeholders to understand their perspectives on the NEPA process. These meetings can help inform CEQ's development of guidance or other initiatives and engagement with Federal agencies. Finally, CEQ coordinates with other Federal agencies and components of the White House on a wide array of environmental issues and reviews that intersect with the NEPA process, such as Endangered Species Act consultation or effects to Federal lands and waters from federally authorized activities.

In addition to its NEPA responsibilities, CEQ is currently charged with implementing several of the administration's key environmental priorities. On January 27, 2021, the President signed E.O. 14008,
Tackling the Climate Crisis at Home and Abroad,
to establish a government-wide approach to the climate crisis by reducing GHG emissions across the economy; increasing resilience to climate change-related effects; conserving land, water, and biodiversity; transitioning to a clean-energy economy; advancing environmental justice; and investing in disadvantaged communities.
13

CEQ is leading the President's efforts to secure environmental justice consistent with sections 219 through 223 of the E.O.
14

For example, CEQ has developed the Climate and Economic Justice Screening Tool
15

and collaborates with the Office of Management and Budget (OMB) and the National Climate Advisor on implementing the Justice40 initiative, which sets a goal that 40 percent of the overall benefits of certain Federal investments flow to disadvantaged communities.
16

13
E.O. 14008,
supra
note 2.

14
E.O. 14008's direction to advance environmental justice reinforces and reflects longstanding policy established in E.O. 12898 and advances the related though distinct policy defined more broadly in E.O. 13985,
Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,
that the Federal Government “pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” 86 FR 7009 (Jan. 25, 2021), sec. 1.

15
CEQ,
Explore the Map,
Climate and Economic Justice Screening Tool,
https://screeningtool.geoplatform.gov/.

16
E.O. 14008,
supra
note 2, sec. 223.

Section 205 of the E.O. also charged CEQ with developing the Federal Sustainability Plan, a directive that was augmented by E.O. 14057,
Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability,
17

to achieve a carbon pollution-free electricity sector and clean and zero-emission vehicle fleets. CEQ also is collaborating with the Departments of the Interior, Agriculture, and Commerce on the implementation of the America the Beautiful Initiative.
18

Additionally, E.O. 14008 requires the Chair of CEQ and the Director of OMB to ensure that Federal permitting decisions consider the effects of GHG emissions and climate change.
19

17
E.O. 14057,
supra
note 3.

18
E.O. 14008,
supra
note 2.

19

Id.
at sec. 213(a);
see also id.,
sec. 219 (directing agencies to “make achieving environmental justice part of their missions by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities”).

CEQ is also instrumental to the President's efforts to institute a government-wide approach to advancing environmental justice. On April 21, 2023, the President signed E.O. 14096,
Revitalizing Our Nation's Commitment to Environmental Justice for All,
to further embed environmental justice into the work of Federal agencies and ensure that all people can benefit from the vital safeguards enshrined in the Nation's foundational environmental and civil rights laws.

20

The E.O. charges each agency with making achieving environmental justice part of its mission consistent with statutory authority,
21

and requires each agency to submit to the Chair of CEQ and make publicly available an Environmental Strategic Plan setting forth the agency's goals and plans for advancing environmental justice.
22

Further, section 8 of the E.O. establishes a White House Office of Environmental Justice within CEQ.

20
E.O. 14096,
Revitalizing Our Nation's Commitment to Environmental Justice for All,
88 FR 25251 (Apr. 26, 2023). E.O. 14096 builds upon efforts to advance environmental justice and equity

consistent with the policy advanced in documents including E.O. 13985, E.O. 14008, and E.O. 12898.
See, e.g.,
note 14,
supra.

21
E.O. 14096,
supra
note 20, sec. 3.

22

Id.
at sec. 4.

Finally, CEQ is staffed with experts with decades of NEPA experience. CEQ's diverse array of responsibilities and expertise has long influenced the implementation of NEPA, and CEQ relied extensively on this experience in developing this rulemaking.

C. NEPA Implementation 1970-2019

Following shortly after the enactment of NEPA, President Nixon issued E.O. 11514,
Protection and Enhancement of Environmental Quality,
directing CEQ to issue guidelines for implementation of section 102(2)(C) of NEPA.
23

In response, CEQ in April 1970 issued interim guidelines, which addressed the provisions of section 102(2)(C) of the Act regarding EIS requirements.
24

CEQ revised the guidelines in 1971 and 1973 to address public involvement and introduce the concepts of EAs and draft and final EISs.
25

23
E.O. 11514,
Protection and Enhancement of Environmental Quality,
35 FR 4247 (Mar. 7, 1970), sec. 3(h).

24

See
Statements on Proposed Federal Actions Affecting the Environment, 35 FR 7390 (May 12, 1970) (interim guidelines).

25
Statements on Proposed Federal Actions Affecting the Environment, 36 FR 7724 (Apr. 23, 1971) (final guidelines); Preparation of Environmental Impact Statements, 38 FR 10856 (May 2, 1973) (proposed revisions to the guidelines); Preparation of Environmental Impact Statements: Guidelines, 38 FR 20550 (Aug. 1, 1973) (revised guidelines).

In 1977, President Carter issued E.O. 11991,
Relating to Protection and Enhancement of Environmental Quality,
amending E.O. 11514 and directing CEQ to issue regulations for implementation of section 102(2)(C) of NEPA and requiring that Federal agencies comply with those regulations.
26

CEQ promulgated its NEPA regulations in 1978.
27

Issued 8 years after NEPA's enactment, the NEPA regulations reflected CEQ's interpretation of the statutory text and Congressional intent, expertise developed through issuing and revising the CEQ guidelines and advising Federal agencies on their implementation of NEPA, initial interpretations of the courts, and Federal agency experience implementing NEPA. The 1978 regulations reflected the fundamental principles of informed and science-based decision making, transparency, and public engagement Congress established in NEPA. The regulations further required agency-level implementation, directing Federal agencies to issue and update periodically agency-specific implementing procedures to supplement CEQ's procedures and integrate the NEPA process into the agencies' specific programs and processes. Consistent with 42 U.S.C. 4332(2)(B), the regulations also required agencies to consult with CEQ in the development or update of these agency-specific procedures to ensure consistency with CEQ's regulations.

26
E.O. 11991,
Relating to Protection and Enhancement of Environmental Quality,
42 FR 26967 (May 25, 1977).

27
Implementation of Procedural Provisions, 43 FR 55978 (Nov. 29, 1978).

CEQ made typographical amendments to the 1978 implementing regulations in 1979
28

and amended one provision in 1986 (CEQ refers to these regulations, as amended, as the “1978 regulations” in this preamble).
29

Otherwise, CEQ left the regulations unchanged for over 40 years. As a result, CEQ and Federal agencies developed extensive experience implementing the 1978 regulations, and a large body of agency practice and case law developed based on them.

28
Implementation of Procedural Provisions; Corrections, 44 FR 873 (Jan. 3, 1979).

29
National Environmental Policy Act Regulations; Incomplete or Unavailable Information, 51 FR 15618 (Apr. 25, 1986) (amending 40 CFR 1502.22).

D. 2020 Amendments to the CEQ Regulations

On August 15, 2017, President Trump issued E.O. 13807,
Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,
30

which directed CEQ to establish and lead an interagency working group to identify and propose changes to the NEPA regulations.
31

In response, CEQ issued an advance notice of proposed rulemaking (ANPRM) on June 20, 2018,
32

and a notice of proposed rulemaking (NPRM) on January 10, 2020, proposing broad revisions to the 1978 regulations.
33

A wide range of stakeholders submitted more than 12,500 comments on the ANPRM
34

and 1.1 million comments on the proposed rule,
35

including from state and local governments, Tribes, environmental advocacy organizations, professional and industry associations, other advocacy or non-profit organizations, businesses, and private citizens. Many commenters provided detailed feedback on the legality, policy wisdom, and potential consequences of the proposed amendments. In keeping with the proposed rule, the final rule, promulgated on July 16, 2020 (“2020 regulations” or “2020 rule”), made wholesale revisions to the regulations; it took effect on September 14, 2020.
36

30
E.O. 13807,
supra
note 12.

31

Id.,
sec. 5(e)(iii).

32
Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, 83 FR 28591 (June 20, 2018).

33
Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 FR 1684 (Jan. 10, 2020).

34

See
Docket No. CEQ-2018-0001,
https://www.regulations.gov/document/CEQ-2018-0001-0001.

35

See
Docket No. CEQ-2019-0003,
https://www.regulations.gov/document/CEQ-2019-0003-0001.

36
Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 FR 43304 (July 16, 2020) (“2020 Final Rule”).

In the months that followed the issuance of the 2020 regulations, five lawsuits were filed challenging the 2020 rule.
37

These cases challenge the 2020 rule on a variety of grounds, including under the Administrative Procedure Act (APA), NEPA, and the Endangered Species Act, contending that the rule exceeded CEQ's authority and that the related rulemaking process was procedurally and substantively defective. In response to CEQ's motions and joint motions, the district courts issued temporary stays in each of these cases, except for
Wild Virginia
v.
Council on Environmental Quality,
which the district court dismissed without prejudice on June 21, 2021.
38

The Fourth Circuit affirmed that dismissal on December 22, 2022.
39

37

Wild Va.
v.
Council on Env't Quality,
No. 3:20cv45 (W.D. Va. 2020);
Env't Justice Health All.
v.
Council on Env't Quality,
No. 1:20cv06143 (S.D.N.Y. 2020);
Alaska Cmty. Action on Toxics
v.
Council on Env't Quality,
No. 3:20cv5199 (N.D. Cal. 2020);
California
v.
Council on Env't Quality,
No. 3:20cv06057 (N.D. Cal. 2020);
Iowa Citizens for Cmty. Improvement
v.
Council on Env't Quality,
No. 1:20cv02715 (D.D.C. 2020). Additionally, in
The Clinch Coalition
v.
U.S. Forest Serv.,
No. 2:21cv00003 (W.D. Va. 2020), plaintiffs challenged the U.S. Forest Service's NEPA implementing procedures, which established new categorical exclusions, and, relatedly, the 2020 rule's provisions on categorical exclusions.

38

Wild Va.
v.
Council on Env't Quality,
544 F. Supp. 3d 620 (W.D. Va. 2021).

39

Wild Va.
v.
Council on Env't Quality,
56 F.4th 281 (4th Cir. 2022).

E. CEQ's Review of the 2020 Regulations

On January 20, 2021, President Biden issued E.O. 13990,
Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,
40

to establish an administration policy to listen to the science; improve public health and protect our environment; ensure access to clean air and water; limit exposure to dangerous chemicals and pesticides; hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; reduce GHG emissions; bolster resilience to the impacts of climate change; restore and expand the Nation's treasures and monuments; and prioritize both environmental justice and the creation of well-paying union jobs necessary to achieve these goals.
41

The Executive Order calls for Federal agencies to review existing regulations issued between January 20, 2017, and January 20, 2021, for consistency with the policy it articulates and to take appropriate action.
42

The Executive Order also revokes E.O. 13807 and directs agencies to take steps to rescind any rules or regulations implementing it.
43

An accompanying White House fact sheet, published on January 20, 2021, specifically identified the 2020 regulations for CEQ's review for consistency with E.O. 13990's policy.
44

40
86 FR 7037 (Jan. 25, 2021).

41

Id.
at sec. 1.

42

Id.

43

Id.
at sec. 7.

44
The White House, Fact Sheet: List of Agency Actions for Review (Jan. 20, 2021),
https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.

Consistent with E.O. 13990 and E.O. 14008, CEQ has reviewed the 2020 regulations and engaged in a multi-phase rulemaking process to ensure that the NEPA implementing regulations provide for sound and efficient environmental review of Federal actions, including those actions integral to tackling the climate crisis, in a manner that enables meaningful public participation, provides for an expeditious process, discloses climate change-related effects, advances environmental justice, respects Tribal sovereignty, protects our Nation's resources, and promotes better and more equitable environmental and community outcomes.

First, CEQ issued an interim final rule on June 29, 2021, amending the requirement in 40 CFR 1507.3(b) for agencies to propose changes to existing agency-specific NEPA procedures by September 14, 2021, to make those procedures consistent with the 2020 regulations.
45

CEQ extended the date by 2 years to avoid agencies proposing changes to agency-specific implementing procedures on a tight deadline to conform to regulations that are undergoing extensive review and would likely change in the near future.

45
Deadline for Agencies to Propose Updates to National Environmental Policy Act Procedures, 86 FR 34154 (June 29, 2021).

Next, on October 7, 2021, CEQ issued a “Phase 1” proposed rule to focus on a discrete set of provisions designed to restore three elements of the 1978 regulations.
46

CEQ proposed changes to the provisions it considered most critical to address, revise, and clarify while completing the comprehensive review. First, CEQ proposed to revise 40 CFR 1502.13 to clarify that agencies have discretion to consider a variety of factors when assessing an application for authorization by removing a requirement that an agency base the purpose and need on the goals of an applicant and the agency's statutory authority. CEQ also proposed a conforming edit to the definition of “reasonable alternatives” in 40 CFR 1508.1(z). Second, CEQ proposed to remove language in 40 CFR 1507.3 that could be construed to limit agencies' flexibility to develop or revise procedures to implement NEPA specific to their programs and functions that may go beyond CEQ's regulatory requirements. Finally, CEQ proposed to revise the definition of “effects” in 40 CFR 1508.1(g) to restore the substance of the definitions of “effects” and “cumulative impacts” contained in the 1978 regulations. CEQ received 94,458 written comments in response to the proposed rule. CEQ issued a Phase 1 final rule on April 20, 2022,
47

which finalized the proposed revisions.

46
National Environmental Policy Act Implementing Regulations Provisions, 86 FR 55757 (Oct. 7, 2021).

47
National Environmental Policy Act Implementing Regulations Revisions, 87 FR 23453 (Apr. 20, 2022) (“Phase 1 Final Rule”).

CEQ received a variety of comments on the Phase 1 proposed rule suggesting additional provisions or changes that CEQ should consider as part of the Phase 2 rulemaking.
48

For example, commenters requested that CEQ strengthen public participation requirements and encourage more robust public engagement; better incorporate environmental justice and climate change considerations into the regulations; further address the climate and biodiversity crises; modernize environmental review of renewable energy projects; and further refine definitions, including human environment, major Federal action, and effects. In addition, commenters suggested that CEQ address page and time limits; mitigation; tiering; CEs; and improved coordination among Federal, Tribal, State, and local agencies and governments. Additionally, many of the comments on the Phase 1 proposed rule's changes to 40 CFR 1502.13 on purpose and need also included suggestions for changes to 40 CFR 1502.14 and the discussion of alternatives. Where appropriate, CEQ summarizes these Phase 1 comments as they relate to specific subsections of Section II of the preamble.

48

See
CEQ, National Environmental Policy Act Implementing Regulations Revision Phase 1 Response to Comments (Apr. 2022) (“Phase 1 Response to Comments”),
https://www.regulations.gov/document/CEQ-2021-0002-39427.

Here, in this Phase 2 notice of proposed rulemaking (NPRM), CEQ initiates a broader rulemaking to revise, update, and modernize the NEPA implementing regulations. Informed by CEQ's extensive experience implementing NEPA, CEQ proposes further revisions to ensure the NEPA process provides for efficient and effective environmental reviews that are guided by science and are consistent with the statute's text and purpose; enhance clarity and certainty for Federal agencies, project proponents, and the public; inform the public about the potential environmental effects of Federal Government actions and enable full and fair public participation; and ultimately promote better informed Federal decisions that protect and enhance the quality of the human environment, including by ensuring climate change, environmental justice, and other environmental issues are fully accounted for in agencies' decision-making processes.

As part of CEQ's review, CEQ engaged in extensive outreach with a wide variety of interested and experienced parties to solicit their feedback and recommendations on what new elements CEQ should consider adding; what elements from the 1978 regulations CEQ should consider restoring; what existing elements of the NEPA regulations CEQ should consider clarifying, revising, or removing; and what existing elements CEQ should retain in their current form. CEQ convened a Federal interagency working group made up of NEPA practitioners, attorneys, and other experts to hear and discuss their recommendations on a wide variety of issues in the NEPA regulations and more generally with the environmental review process. The Federal agency participants represented the broad array of NEPA practice and environmental expertise across the

Federal Government, including land management, infrastructure, resource conservation, climate, and environmental justice experts.

CEQ also hosted or participated in over 60 meetings with external parties, such as environmental organizations, business and industry organizations (including timber, energy, air, grazing, mining, and transportation organizations), Tribal Nations, State governments, environmental justice organizations, academics, and labor organizations. Additionally, CEQ held a Tribal consultation specifically on the Phase 2 regulations and the updates to CEQ's GHG guidance on November 12, 2021. CEQ considered the feedback received during these engagements in the development of this proposed rule and has included summaries of the external engagements in the docket.

Finally, as discussed in Section I.B, CEQ relies on its extensive experience overseeing and implementing NEPA in the development of this rule. CEQ has over 50 years of experience advising Federal agencies on the implementation of NEPA. CEQ collaborates daily with Federal agencies on specific NEPA reviews, provides government-wide guidance on NEPA implementation, consults with agencies on the development of agency-specific NEPA implementing procedures and determines they conform with NEPA and the CEQ regulations, and advises the President on a vast array of environmental issues. This experience also enables CEQ to clarify the patchwork of fact-specific judicial decisions that have evolved under NEPA. This rulemaking seeks to bring clarity and predictability to Federal agencies and outside parties whose activities require Federal action and therefore trigger NEPA review, while also facilitating better environmental and social outcomes due to informed decision making.

II. Summary of Proposed Rule

This section summarizes CEQ's proposed revisions to its NEPA implementing regulations and the rationale for the changes. CEQ's proposed changes fall into five general categories. First, CEQ proposes revisions to implement the amendments to NEPA made by the FRA. Second, where CEQ determined it made sense to do so, CEQ proposes to amend provisions, which the 2020 regulations revised, to revert to the language from the 1978 regulations that was in effect for more than 40 years, subject to minor revisions for clarity. Third, CEQ proposes to remove certain provisions added by the 2020 rule that CEQ considers imprudent or legally unsettled. Fourth, CEQ proposes to amend certain provisions to enhance consistency and provide clarity to improve the efficiency and effectiveness of the environmental review process. Fifth, CEQ proposes revisions to the regulations to implement decades of CEQ and agency experience implementing and complying with NEPA, foster science-based decision making—including decisions that account for climate change and environmental justice—improve the efficiency and effectiveness of the environmental review process, and better effectuate NEPA's statutory purposes. CEQ is retaining many of the changes made in the 2020 rulemaking particularly where those changes codified longstanding practice or guidance or enhanced the efficiency and effectiveness of the NEPA process.

In response to the Phase 1 proposed rule, CEQ received many comments on provisions not addressed in Phase 1. CEQ indicated in the Phase 1 final rule that it would consider such comments during the development of this Phase 2 rulemaking. CEQ has done so, and where applicable, this NPRM provides a high-level summary of the important issues raised in those public comments.

While some comments have advocated for a straight return to the 1978 regulations, CEQ does not consider this to be the appropriate approach. As part of its review, CEQ evaluated the provisions of the 2020 regulations and sought feedback from NEPA experts and interested stakeholders to identify provisions that, as written, add value to the NEPA process or that require amendments to enhance clarity or improve efficiency and effectiveness. For example, CEQ identified for retention the inclusion of Tribal interests throughout the regulations, the integration of mechanisms to facilitate better interagency cooperation, and the reorganization and modernization of provisions addressing certain elements of the process to make the regulations easier to understand and follow. CEQ considers it important that the regulations meet current goals and objectives, including to promote the development of NEPA documents that are concise but also include the information needed to inform decision makers and reflect public input. CEQ's proposed revisions to the regulations emphasize the importance of transparency and public engagement, reflecting modern practices and changing needs, while also recognizing the discretion and flexibility that Federal agencies need to respond and move efficiently and effectively through the NEPA process.

A. Proposed Changes Throughout Parts 1500-1508
49

49
CEQ prepared a redline of this proposed rule's changes to the current CEQ regulations and provided it in the docket as a tool to facilitate public review of this NPRM.

CEQ proposes several revisions throughout parts 1500-1508 to provide consistency, improve clarity, and correct grammatical errors. Improved clarity reduces confusion and results in more consistent implementation, thereby improving the efficiency of the NEPA process and reducing the risk of litigation.

For greater consistency and clarity, CEQ proposes to change the word “impact” to “effect” where this term is used as a noun because these two words are synonymous. Throughout the regulations, to improve clarity, CEQ proposes to use the word “significant” only to modify the term “effects.” Accordingly, throughout the regulations, where “significant” modifies a word other than “effects,” CEQ proposes to replace “significant” with another accurate adjective, typically “important” or “substantial,” which have been used throughout the CEQ regulations since 1978. In doing so, CEQ seeks to avoid confusion about what “significant” means in these other contexts by limiting its use to describing “significant effects.” The one exception to this change would be that CEQ proposes for the regulations to continue to refer to a finding of no significant impact (FONSI), which CEQ would leave intact because the concept of a FONSI is entrenched in practice and case law. CEQ heard from public comments and agency feedback on the Phase 1 rulemaking that use of the word “significant” in phrases such as “significant issues” or “significant actions” creates confusion on what the word “significant” means.
50

The proposed change also aligns with the proposed definition of “significant effects” in § 1508.1(jj),
51

as discussed in section II.J.13. CEQ does not intend these proposed changes to substantively change the meaning of the provisions.

50
Phase 1 Response to Comments,
supra
note 48, at 120-21.

51
In the preamble, CEQ uses the section symbol (§ ) to refer to the proposed regulations as set forth in this NPRM and 40 CFR to refer to the current CEQ regulations as set forth in 40 CFR parts 1500-1508. When referencing specific regulatory sections in place prior to the 2020 final rule, CEQ uses 40 CFR but adds “(2019).”

For clarity, CEQ proposes to change “statement” to “environmental impact statement” and “assessment” to “environmental assessment” where the regulations only use the short form in the paragraph. See,
e.g.,
§§ 1502.3 and 1506.3(e)(1) through (e)(3).

CEQ also proposes to make grammatical corrections or other edits throughout the regulations where CEQ considers the changes necessary for the reader to understand fully the meaning of the sentences. Finally, CEQ proposes to update the authorities for each part, update the references to NEPA as amended by the FRA, and fix internal cross references to other sections of the regulations throughout to follow the correct
Federal Register
format.

B. Proposed Revisions To Update Part 1500, Purpose and Policy

1. Purpose (§ 1500.1) and Policy (§ 1500.2)

Consistent with the approach taken in the 1978 regulations, CEQ proposes to address the purpose of the CEQ regulations in § 1500.1, “Purpose,” and reinstate § 1500.2, “Policy.” In § 1500.1, CEQ proposes to restore much of the language from the 1978 regulations and further incorporate the policies Congress established in the NEPA statute. CEQ is proposing these changes to restore text regarding NEPA's purpose and goals, placing the regulations into their broader context. CEQ also finds value in restating the policies of the Act within the regulations, which would improve readability by avoiding the need for cross references to material outside the four corners of the regulations.

Specifically, CEQ proposes to revise 40 CFR 1500.1(a) by subdividing it into § 1500.1(a), (a)(1), and (a)(2), and restoring language from the 1978 regulations that states the principles and policies Congress established in sections 101 and 102 of NEPA. CEQ is proposing to remove the language that describes NEPA as a purely procedural statute because, while correct, CEQ considers that language to be an inappropriately narrow view of NEPA's purpose that minimizes some of the broader goals of NEPA described in section I.A. While CEQ agrees that a NEPA analysis does not dictate a particular outcome by the decision maker, Congress established the NEPA process to provide for better informed Federal decision making and improve environmental outcomes, and those goals are not fulfilled if the NEPA analysis is treated merely as a check-the-box exercise. In short, CEQ does not consider it necessary to repeatedly emphasize the procedural nature of NEPA, which may suggest that NEPA mandates a rote paperwork exercise and de-emphasizes the Act's larger goals and purposes. Instead, CEQ remains cognizant of the goals Congress intended to achieve through the NEPA process in developing its implementing regulations, and agencies should carry out NEPA's procedural requirements in a manner faithful to the purposes of the statute.

In § 1500.1(a)(1), CEQ proposes to retain the sentence summarizing section 101(a) of NEPA and add a second sentence summarizing section 101(b) to clarify that agencies also should accomplish the purposes described in section 101(b) through NEPA reviews. Including this language in § 1500.1(a)(1) would help agencies understand what the regulations refer to when the regulations direct or encourage agencies to act in a manner consistent with the purposes or policies of the Act.
See, e.g.,
§§ 1500.2(a), 1500.6, 1501.1(a), 1502.1(a), and 1507.3(b).

In § 1500.1(a)(2), CEQ proposes to restore generally the language of the 1978 regulations stating that the purpose of the regulations is to convey what agencies should and must do to comply with NEPA to achieve its purpose. CEQ proposes to strike the language added by the 2020 rule that NEPA requires Federal agencies to provide a detailed statement for major Federal actions, that the purpose and function of NEPA is satisfied if agencies have considered environmental information and informed the public, and that NEPA does not mandate particular results. While it is true that NEPA does not mandate particular results in specific decision-making processes, this language unduly minimizes Congress's understanding that procedures ensuring that agencies analyze, consider, and disclose environmental effects will lead to better substantive outcomes, and is inconsistent with Congress's statements of policy in the NEPA statute.

In § 1500.1(b), CEQ proposes to strike the first two sentences added by the 2020 rule and restore language from the 1978 regulations emphasizing the importance of the early identification of high-quality information that is relevant to a decision. Early identification and consideration of issues using high-quality information have long been fundamental to the NEPA process, particularly because this facilitates comprehensive analysis of alternatives and timely and efficient decision making, and CEQ considers it important to emphasize these considerations in this section. The proposed changes also emphasize that the environmental information that agencies use in the NEPA process should be high-quality, science-based, and accessible. CEQ proposes to strike the first two sentences of this paragraph, which the 2020 rule added, because they also provide an unnecessarily narrow view of the purposes of NEPA and its implementing regulations.

Finally, CEQ proposes in a new § 1500.1(c) to restore text from the 1978 regulations, most of which the 2020 rule deleted, emphasizing the importance of NEPA reviews for informed decision making. The proposed changes to § 1500.1 recognize that the procedural provisions of NEPA are intended to further the purpose and goals of the Act. One of those goals is to make improved and sound government decisions.

The 2020 rule struck 40 CFR 1500.2 (2019) and integrated policy language into 40 CFR 1500.1 (2020).
52

CEQ is proposing to once again provide for two sections, renaming § 1500.1 to “Purpose” and restoring § 1500.2 as “Policy.” CEQ is proposing to restore with some updates the language of the 1978 regulations to § 1500.2.

52
2020 Final Rule,
supra
note 36, at 43316-17.

In § 1500.2(a), CEQ proposes to restore the 1978 language directing agencies to interpret their authorities consistent with the policies of NEPA and the CEQ regulations to the fullest extent possible. Paragraph (b) would restore with clarifying edits the 1978 language directing agencies to implement procedures that facilitate a meaningful NEPA process to the fullest extent possible and emphasize that environmental documents should be concise and clear. Paragraph (c) would direct agencies to integrate NEPA with other planning and environmental review requirements to the fullest extent possible, which promotes efficient processes. CEQ proposes to modernize language from the 1978 regulations in paragraph (d) to emphasize public engagement, including with communities with environmental justice concerns, which often include communities of color, low-income communities, and indigenous communities, and Tribal communities. CEQ views an emphasis on engagement with such communities to be important because agencies have not always meaningfully engaged with them and such communities have been disproportionately and adversely affected by certain Federal activities.

In proposing to make this change to emphasize public engagement, CEQ notes that the obligation to consult with Tribal Nations on a nation-to-nation basis is distinct from the public engagement requirements of NEPA.
53

CEQ invites comment on whether

additional changes to the NEPA regulations would be appropriate in light of the obligation for Tribal consultation.

53

See
E.O. 13175,
Consultation and Coordination with Indian Tribal Governments,
65 FR 67249 (Nov. 9, 2000); Presidential Memorandum, Tribal Consultation and Strengthening Nation-to-Nation Relationships, 86 FR 7491 (Jan. 29, 2021),
https://www.federalregister.gov/d/2021-02075.

In paragraph (e), CEQ proposes to restore language from the 1978 regulations regarding the identification of alternatives that avoid or minimize adverse effects. CEQ is proposing to add examples of such alternatives, including those that will reduce climate change-related effects or address effects that disproportionately affect communities with environmental justice concerns consistent with E.O. 12898 and E.O. 14096, to highlight the importance of considering such effects in environmental documents, consistent with NEPA's requirements, including the consideration of high-quality information, such as best available science and data.
54

54
Consideration of environmental justice and climate change-related effects has long been part of NEPA analysis.
See, e.g.,
Environmental Justice Guidance,
supra
note 6, and
Ctr. For Biological Diversity
v.
Nat'l Highway Traffic Safety Admin.,
538 F.3d 1172 (9th Cir. 2008).
See also
42 U.S.C. 4331(b) (“[I]t is the continuing responsibility of the Federal Government to . . . assure for
all
Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings . . . [and to] maintain, wherever possible, an environment which supports diversity and variety of individual choice” (emphasis added); 42 U.S.C. 4332(2)(F) (“all agencies of the Federal Government shall . . . recognize the worldwide and long-range character of environmental problems”).

Finally, in paragraph (f), CEQ proposes to restore the direction from the 1978 regulations to use all practicable means to restore and enhance the environment, consistent with the policies of NEPA. These proposed restorations and additions to § 1500.2(d), (e), and (f) reflect longstanding practice among Federal agencies and align with NEPA's statutory policies, including to avoid environmental degradation, preserve historic, cultural, and natural resources, and “attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.” 42 U.S.C. 4331(b).

The 2020 rule removed the Policy section stating that it was duplicative of other sections.
55

However, CEQ proposes to restore and update this section because a robust articulation of the Act's policy principles is fundamental to the NEPA process. CEQ also considers it helpful to agency practitioners and the public to have a consolidated listing of policy objectives regardless of whether other sections of the regulations address those objectives.

55
2020 Final Rule,
supra
note 36 at 43317.

2. NEPA Compliance (§ 1500.3)

CEQ proposes to remove from § 1500.3 provisions added by the 2020 rule regarding exhaustion and remedies, restore some language from the 1978 regulations removed by the 2020 rule, and make other conforming edits. Specifically, in § 1500.3(a), CEQ proposes to remove the phrase “except where compliance would be inconsistent with other statutory requirements” because this is addressed by § 1500.6. CEQ also proposes to remove the reference to E.O. 13807, which E.O. 13990 revoked, as well as the reference to section 309 of the Clean Air Act because this provision is implemented by EPA.

CEQ proposes to delete 40 CFR 1500.3(b), including its paragraphs. The process established by the 2020 rule provides that first, an agency must request in its notice of intent (NOI) comments on all relevant information, studies, and analyses on potential alternatives and effects. 40 CFR 1500.3(b)(1). Second, the agency must summarize all the information it receives in the draft EIS and specifically seek comment on it. 40 CFR 1500.3(b)(2), 1502.17, 1503.1(a)(3). Third, decision makers must certify in the record of decision (ROD) that they considered all the alternatives, information, and analyses submitted by public commenters. 40 CFR 1500.3(b)(4), 1505.2(b). Fourth, any comments not submitted within the comment period are considered forfeited as unexhausted. 40 CFR 1500.3(b)(3), 1505.2(b). By adding this exhaustion process, the 2020 rule aimed to limit legal challenges and judicial remedies.
56

56
2020 Final Rule,
supra
note 36, at 43317-18.

CEQ proposes to remove this process because it establishes an inappropriately stringent exhaustion requirement for public commenters and agencies. It is unsettled whether CEQ has the authority under NEPA to set out an exhaustion requirement that bars parties from bringing claims on the grounds that an agency's compliance with NEPA violated the APA, pursuant to 5 U.S.C. 702. While the 2020 rule correctly identifies instances in which courts have ruled that parties may not raise legal claims based on issues that they themselves did not raise during the comment period,
57

other courts have sometimes ruled that a plaintiff can bring claims where another party raised an issue in comments or where the agency should have identified an issue on its own.
Pac. Coast Fed'n of Fishermen's Ass'ns
v.
U.S. Dep't of Interior,
929 F. Supp. 2d 1039, 1045-46 (E.D. Cal. 2013);
Wyo. Lodging and Rest. Ass'n
v.
U.S. Dep't of Interior,
398 F. Supp. 2d 1197, 1210 (D. Wyo. 2005);
see Pub. Citizen,
541 U.S. at 765 (noting that “[T]he agency bears the primary responsibility to ensure that it complies with NEPA . . . and an EA's or an EIS' flaws might be so obvious that there is no need for a commentator to point them out specifically in order to preserve its ability to challenge a proposed action”). Because the fundamental question raised by these cases is the availability of a cause of action under the APA, and not a question of interpreting NEPA, CEQ considers this question more appropriate for the courts to determine. Further, nothing in this revision would limit the positions the Federal Government may take regarding whether, based on the facts of a particular case, a particular issue has been forfeited by a party's failure to raise it before the agency, and removing this provision does not suggest that a party should not be held to have forfeited an issue by failing to raise it. By deleting the exhaustion requirements, CEQ does not take the position that plaintiffs may raise new and previously unraised issues in litigation. Rather, CEQ considers this to be a question of general administrative law and therefore the courts to be the proper venue to determine whether any particular claim can proceed.

57

Id.
(citing
Dep't of Transp.
v.
Pub. Citizen,
541 U.S. 752 (2004);
Karst Env't. Educ. & Prot., Inc.
v.
Fed. Highway Admin.,
559 F. App'x 421 (6th Cir. 2014);
Friends of the Norbeck
v.
U.S. Forest Serv.,
661 F.3d 969 (8th Cir. 2011);
Exxon Mobil Corp.
v.
U.S. EPA,
217 F.3d 1246 (9th Cir. 2000);
Nat'l Ass'n of Mfrs.
v.
U.S. Dep't of the Interior,
134 F.3d 1095 (D.C. Cir. 1998)).

Moreover, the exhaustion requirement established in the 2020 rule is at odds with longstanding agency practice. While courts have ruled that agencies are not required to do so,
see, e.g., Pub. Citizen,
541 U.S. at 764-65 (finding that where a party does not raise an objection in their comments on an EA, the party forfeits any objection to the EA on that ground), agencies have discretion to consider and respond to comments submitted after a comment period ends. The exhaustion requirement established in the 2020 regulations could encourage agencies to disregard important information presented to the agency shortly after a comment period closes, and such a formalistic approach would not advance NEPA's goal of informed decision making.

To be clear, this change does not relieve parties interested in participating in, commenting on, or ultimately challenging a NEPA analysis

of the obligation to “structure their participation so that it is meaningful.”
Vt. Yankee Nuclear Power Corp.
v.
Nat. Res. Def. Council, Inc.,
435 U.S. 519, 553 (1978). As CEQ's regulations have made clear since 1978, parties must provide comments that are as specific as possible to enable agencies to consider and address information during the decision-making processes.
See
40 CFR 1503.3(a). While commenters should follow the appropriate procedures and time limits, the revisions would provide agencies flexibility to address unusual circumstances.

CEQ proposes to redesignate 40 CFR 1500.3(c), “Review of NEPA compliance,” as paragraph (b) and move to paragraph (b) the sentence from 40 CFR 1500.3(d) regarding harmless error for minor, non-substantive errors, which is a concept that has been in place since the 1978 regulations. CEQ proposes to delete the remaining text of 40 CFR 1500.3(c), removing language that noncompliance with NEPA and the CEQ regulations should be resolved as expeditiously as possible. While CEQ agrees with expeditious resolution of issues, CEQ considers this inappropriate for regulatory text as these regulations cannot compel members of the public or courts to resolve NEPA disputes. Rather, the regulations promote public engagement, appropriate analysis, and informed decision making to facilitate NEPA compliance and avoid such disputes from the outset. CEQ also proposes to strike the last sentence in this paragraph regarding bonding and other security requirements, which relates to litigation over an agency action and not the NEPA process itself. It is unsettled whether NEPA provides agencies with authority to promulgate procedures that require plaintiffs to post bonds in litigation brought under the APA. In any case, CEQ does not consider it appropriate to address this issue in the NEPA implementing regulations.

With the exception of the last sentence in 40 CFR 1500.3(d) regarding remedies, which CEQ proposes to move, as discussed earlier in this section, CEQ proposes to delete the remainder of the paragraph. It is questionable whether CEQ has the authority to direct courts about what remedies are available in litigation brought under the APA to challenge NEPA compliance and, in any case, CEQ considers the 2020 rule's addition of this paragraph to be inappropriate. CEQ considers courts to be in the best position to determine the appropriate remedies when a plaintiff successfully challenges an agency's NEPA compliance.

Finally, CEQ proposes to redesignate 40 CFR 1500.3(e), “Severability,” as paragraph (c), without change. CEQ intends these regulations to be severable. The proposed rule would amend existing regulations and the NEPA regulations could be functionally implemented if each revision proposed in this rule occurred on its own or in combination with any other subset of proposed revisions. As a result, if a court were to invalidate any particular provision of this rule, allowing the remainder of the rule to remain in effect would still result in a functional NEPA review process. This approach to severability is the same as the approach that CEQ took when it promulgated the 2020 regulations, because those amendments similarly could be layered onto the 1978 regulations individually without disrupting the overarching NEPA review process.

3. Concise and Informative Environmental Documents (§ 1500.4)

CEQ proposes to revise § 1500.4 to emphasize the important values served by concise and informative NEPA documents beyond merely reducing paperwork, such as promoting informed and efficient decision making and facilitating meaningful public participation. Section 1500.4 lists examples of provisions in the CEQ regulations that provide mechanisms by which agencies may prepare concise and informative environmental documents. Each paragraph listed in § 1500.4 includes cross references to regulatory provisions that further the goal of preparing concise and informative documents.

To that end, CEQ proposes to retitle § 1500.4 from “Reducing paperwork” to “Concise and informative environmental documents” and revise the introductory text to clarify that the paragraphs in this section provide examples of the mechanisms in the regulations that agencies can use to prepare concise and informative environmental documents. CEQ proposes to remove paragraphs (a) and (b) from 40 CFR 1500.4 because they are redundant with § 1500.5(a) and (b) and are more appropriately addressed in the section on reducing delay, as well as paragraph (d) because it is addressed in the revised introductory text. CEQ proposes to redesignate 40 CFR 1500.4(c) and (e) through (q) as § 1500.4 (a) and (b) through (n), respectively.

CEQ proposes to add “
e.g.,
” to the cross references listed in § 1500.4(b), (c), and (e) to clarify that they are non-exclusive examples of how agencies can briefly discuss unimportant issues, write in plain language, and reduce emphasis on background material. CEQ would update the cross references to other sections of the subchapter to reflect proposed changes elsewhere in the regulations. In paragraphs (c) and (e), CEQ proposes to expand the reference from EISs to all environmental documents, as the concepts discussed are more broadly applicable. Additionally, in paragraph (e), CEQ proposes to insert “most” before “useful” to clarify that the environmental documents should not contain portions that are useless.

In § 1500.4(f), CEQ proposes to replace “significant” with “important” and insert “unimportant” to modify “issues” consistent with our proposal to only use “significant” to modify “effects.” CEQ also proposes to clarify in paragraph (f) that scoping may apply to EAs. Finally, CEQ proposes to expand paragraph (h), regarding programmatic review and tiering, to include EAs to align with the proposed changes to § 1501.11. Finally, in paragraph (m), CEQ proposes to insert “Federal” before “agency” consistent with § 1506.3, which allows adoption of NEPA documents prepared by other Federal agencies.

Concise and informational documents make the NEPA process more accessible and transparent to the public, allowing the public an opportunity to contribute to the NEPA process. The changes proposed in § 1500.4 align the regulations with the intent of NEPA to allow the public to provide input, as well as CEQ's stated goal of increasing transparency, while providing agencies flexibility on how to achieve concise and informative documents. These proposed changes aim to encourage the preparation of documents that can be easily read and understood, which in turn promote informed and efficient decision making.

4. Efficient Process (§ 1500.5)

CEQ proposes minor changes to § 1500.5 to provide clarity and flexibility regarding mechanisms by which agencies can apply the CEQ regulations to improve efficiency in the environmental review process. CEQ proposes these changes to acknowledge that unanticipated events and circumstances beyond agency control may delay the environmental review process, and to recognize that, while these approaches may improve efficiency for many NEPA reviews, they could be inefficient for others. To that end, CEQ proposes to retitle § 1500.5 from “Reducing delay” to “Efficient process” and revise the introductory text to reflect the new title. The other proposed changes include adding EAs

to paragraph (a) to make the provision consistent with the definition of “categorical exclusion;” changing “real issues” to “important issues that required detailed analysis” in paragraph (f) for consistency with § 1502.4; and expanding the scope of paragraph (h) from EISs to environmental documents to make clear that, regardless of the level of NEPA review, agencies should prepare environmental documents early in the process. Proposed § 1500.5 recognizes the importance of timely information for decision making and encourages agencies to implement the 12 listed mechanisms to achieve timely and efficient NEPA processes.

5. Agency Authority (§ 1500.6)

In § 1500.6, CEQ proposes to revise the second sentence to remove the qualification added in the 2020 rule that agencies must ensure full compliance with the Act “as interpreted by” these regulations and instead state that agencies must review and revise their procedures to ensure compliance with NEPA and the CEQ regulations. The phrase added in 2020 could be read to indicate that agencies have no freestanding requirement to comply with NEPA itself, which would be untrue. CEQ also considers the proposed change necessary for consistency with § 1507.3(b), which CEQ revised in the Phase 1 rulemaking to make clear that, while agency procedures must be consistent with the CEQ regulations, agencies have discretion and flexibility to develop procedures beyond the CEQ regulatory requirements, enabling agencies to address their specific programs, statutory mandates, and the contexts in which they operate. CEQ proposes to make conforming edits in §§ 1502.2(d) and 1502.9(b) to remove this phrase.

In the third sentence, CEQ proposes to remove the cross-reference to § 1501.1 for consistency with the proposed modifications to § 1501.1 and restore the intent of language from the 1978 regulations, with modification, explaining that the phrase “to the fullest extent possible” means that each agency must comply with section 102 of NEPA unless an agency activity, decision, or action is exempted by law or compliance with NEPA is impossible. Finally, CEQ proposes to strike the last sentence stating that the CEQ regulations do not limit an agency's other authorities or legal responsibilities, which the 2020 rule added to acknowledge the possibility of different statutory authorities with different requirements. While the 2020 regulations contended that this sentence was added for consistency with E.O. 11514, as amended by section 2(g) of E.O. 11991, CEQ considers the sentence superfluous and unnecessarily vague. As stated in the new proposed text, agencies must comply with NEPA in carrying out an activity, decision, or action unless exempted by law or compliance with NEPA is impossible. That description would reflect accurately the directive that Federal agencies comply with the CEQ regulations “except where such compliance would be inconsistent with statutory requirements.”
58

58
2020 Final Rule,
supra
note 36, at 43319.

CEQ's proposed revisions to § 1500.6 would clarify that agencies have an independent responsibility to ensure compliance with NEPA and a duty to harmonize NEPA with their other statutory requirements and authorities to the maximum extent possible. This is true as a general matter of statutory construction as well as under the specific statutory mandate of section 102 of NEPA, which requires that “the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this [Act].” 42 U.S.C. 4332(1).

Therefore, compliance with NEPA is only impossible within the meaning of this subsection when the conflict between another statute and the requirements of NEPA are clear, unavoidable, and irreconcilable. Absent exemption by Congress or a court, an irreconcilable conflict exists only if the agency's authorizing statute grants it no discretion to comply with NEPA while also satisfying the statutory mandate.

C. Proposed Revisions To Update Part 1501, NEPA and Agency Planning

CEQ is proposing substantive revisions to all sections in part 1501 except § 1501.2, “Apply NEPA early in the process,” to which CEQ proposes minor edits for readability that CEQ considers clarifying and non-substantive. CEQ invites comment on whether it should make any substantive changes to that section or other changes to part 1501.

1. Purpose (§ 1501.1)

CEQ proposes to revert and retitle § 1501.1 to “Purpose,” to emphasize the goals of part 1501 consistent with the approach in the 1978 regulations. As discussed further below, CEQ proposes to move some of the NEPA thresholds language in 40 CFR 1501.1 to § 1503.1(a), strike the remaining text, and replace it with new provisions similar to those in the 1978 regulations.

In § 1501.1(a), CEQ proposes to highlight the importance of integrating NEPA early in agency planning processes by generally restoring the language from the 1978 regulations, while also emphasizing that this promotes an efficient process and reduces delay. Restoring this language is consistent with section 102(2)(C) of NEPA and the objective to build into agency decision making, beginning at the earliest point, an appropriate consideration of the environmental aspects of a proposed action. 42 U.S.C. 4332(2)(C). CEQ proposes in paragraph (b) to emphasize early engagement in the environmental review process consistent with other changes proposed throughout the regulations to elevate the importance of early coordination and engagement throughout the NEPA process to identify and address potential issues early in a decision-making process, thereby helping to reduce the overall time required to approve a project and improving outcomes. In new paragraph (c), CEQ proposes to restore text from the 1978 regulations regarding expeditious resolution of interagency disputes as promoted in §§ 1501.7 and 1501.8. Paragraph (d) also would restore the direction to identify the scope of the proposed action and important environmental issues consistent with § 1501.3, thereby enhancing efficiency. Finally, paragraph (e) would highlight the importance of schedules consistent with § 1501.10, which includes provisions requiring agencies to develop a schedule for all environmental reviews and authorizations, as well as §§ 1501.7 and 1501.8, which promote interagency coordination including with respect to schedules.

As discussed further in section II.C.2, CEQ proposes to combine the threshold considerations provision with the process to determine the appropriate level of NEPA review in § 1501.3 by moving 40 CFR 1501.1(a)(1), (2), (4), and (5) to proposed § 1501.3(a)(1), (2), (4), and (4)(ii), respectively, and striking the remaining paragraphs. The 2020 regulations replaced the purpose section in 40 CFR 1501.1 with a list of factors agencies should consider in assessing whether NEPA applies or is otherwise fulfilled for a proposed activity or decision, and allows agencies to make these threshold considerations pursuant to their agency NEPA procedures or on an individual basis.

CEQ proposes to delete two of the threshold factors currently in 40 CFR 1501.1(a). First, CEQ proposes to delete the factor currently listed in 40 CFR 1501.1(a)(3), inconsistency with Congressional intent expressed in another statute. Upon further

consideration, this factor may inadequately account for agencies' responsibility to harmonize NEPA with other statutes, as discussed further in section II.C.2. As discussed in section II.B.5, the regulations provide that an agency should determine if a statute or court exempts an action from NEPA or if compliance with NEPA and another statute would be impossible; if not, the agency must comply with NEPA. To the extent the factor suggests that Congress's intent regarding NEPA compliance involves considerations other than those two determinations, the factor is incorrect.

Second, CEQ proposes to strike the factor in 40 CFR 1501.1(a)(6) regarding functional equivalence. While certain Environmental Protection Agency (EPA) actions are explicitly exempted from NEPA's environmental review requirements, and courts have found other EPA-administered statutes to be functionally equivalent or otherwise exempt, CEQ considers this language added to the 2020 rule to go beyond the scope of the NEPA statute and case law because the language can be construed to expand functional equivalence beyond the narrow contexts in which it has been recognized.
See, e.g.,
15 U.S.C. 793(c)(1) (exempting EPA actions under the Clean Air Act); 33 U.S.C. 1371(c)(1) (exempting most EPA actions under the Clean Water Act);
Env't Def. Fund, Inc.
v.
EPA,
489 F.2d 1247, 1256-57 (D.C. Cir. 1973) (exempting agency actions under FIFRA);
W. Neb. Res. Council
v.
U.S. Env't Prot. Agency,
943 F.2d 867, 871-72 (8th Cir. 1991) (noting exemptions under the Safe Drinking Water Act). CEQ considers the more appropriate and prudent approach is for agencies to establish mechanisms in their agency NEPA procedures to align processes and requirements from other environmental laws with the NEPA process.

CEQ proposes to eliminate the current language in 40 CFR 1501.1(b) allowing agencies to make threshold determinations individually or in their NEPA procedures because CEQ proposes to move the consideration of thresholds into § 1501.3 to consolidate the steps agencies should take to determine whether NEPA applies and, if so, what level of NEPA review is appropriate. The language in 40 CFR 1501.1(b) is also redundant to language in § 1507.3(d)(1), which would provide that agency NEPA procedures may identify activities or decisions that are not subject to NEPA. CEQ proposes to remove as unnecessary 40 CFR 1501.1(b)(1) because agencies have discretion to consult with CEQ and have done so for decades on a wide variety of matters, including on determining NEPA applicability, without such specific language in the CEQ regulations. Finally, CEQ proposes to eliminate 40 CFR 1501.1(b)(2) directing agencies to consult with another agency when they jointly administer a statute if they are making a threshold applicability determination. While CEQ agrees that consultation is a good practice in such circumstances, it does not consider such a requirement necessary for these regulations because consultation is best determined by the agencies involved.

2. Determine the Appropriate Level of NEPA Review (§ 1501.3)

CEQ proposes substantive revisions to § 1501.3 to provide a more robust and consolidated description of the process agencies should use to determine the appropriate level of NEPA review, including addressing the threshold question of whether NEPA applies. CEQ also proposes clarifying edits, including adding paragraph headings to paragraphs (a) through (d). This revised provision would clarify the steps for assessing the appropriate level of NEPA review, facilitating a more efficient and predictable review process.

First, as noted in section II.C.1, CEQ proposes to move 40 CFR 1501.1(a)(1) to a new § 1501.3(a), “Applicability,” and add a sentence requiring agencies to determine whether NEPA applies to a proposed activity or decision as a threshold matter. CEQ proposes this move because the inquiry into whether NEPA applies is central to determining the level of NEPA review and consolidating the steps in this process in one regulatory section would improve the clarity of the regulations. It is also consistent with the approach in section 106 of NEPA, which addresses threshold considerations. CEQ proposes to strike “or is otherwise fulfilled” in the moved text because, as discussed in section II.C.1, CEQ is proposing to remove the functional equivalence factor from the regulation.

Second, CEQ proposes to move the threshold determination factors agencies should consider when determining whether NEPA applies, currently at 40 CFR 1501.1(a)(1) and (2), to § 1501.3(a)(1) and (2) respectively. CEQ proposes to align the text in paragraph (a)(1) with the language in § 1500.6, “exempted from NEPA by law,” and align the text in paragraph (a)(2) with the language in section 106(a)(3) of NEPA, changing “another statute” to “another provision of law” for consistency with the statutory text. Third, CEQ proposes a new factor in paragraph (a)(3) to address circumstances other than those in which Congress or case law have exempted an activity from NEPA, to clarify that there must be an irreconcilable and fundamental conflict between complying with a statutory provision and complying with NEPA—
i.e.,
the other statutory provision must make NEPA compliance impossible. This factor would be consistent with case law and longstanding principles of statutory construction that require statutes to be read in harmony when it is possible to do so. This approach also reflects the statutory requirement of section 102 of NEPA that agencies interpret and administer “the policies, regulations, and public laws of the United States” in accordance with NEPA's policies and is consistent with CEQ's proposed revisions to § 1500.6, “Agency Authority.” 42 U.S.C. 4332;
see
section II.B.5.

Fourth, consistent with section 106(a)(1) and (4) of NEPA, CEQ proposes to move the threshold determination factors regarding whether the activity or decision is a major Federal action from 40 CFR 1501.1(a)(4) and (5), to § 1501.3(a)(4) and (a)(4)(ii), respectively. Consistent with section 106(a)(1) and (4) of NEPA, CEQ proposes to include whether an activity or decision is a final agency action or non-discretionary as subfactors of whether an activity or decision is a major Federal action in § 1501.3(a)(4) because these are also exclusions from the definition of a major Federal action. When agencies assess whether an activity or decision meets the definition of a major Federal action, agencies determine whether they have discretion to consider environmental effects consistent with § 1508.1(u). CEQ invites comment on whether it should make additional changes to § 1501.3(a) in light of the recently enacted provisions in section 106(a) regarding threshold determinations.

Fifth, CEQ proposes to move, with clarifying edits, 40 CFR 1501.9(e), “Determination of scope,” to a new proposed § 1501.3(b), “Scope of action and analysis,” to provide the next step in determining the appropriate level of NEPA review—the scope of the proposed action and its potential effects. In addition, CEQ proposes moving into § 1501.3(b) one sentence from 40 CFR 1502.4(a) directing agencies to evaluate in a single NEPA review proposals sufficiently closely related to be considered a single action, as well as text from 40 CFR 1501.9(e)(1) regarding connected actions, which are closely related Federal activities or decisions that agencies should consider in a single NEPA document. CEQ proposes to move

40 CFR 1501.9(e)(1)(i) through (e)(1)(iii) providing the types of connected actions into § 1501.3(b)(1)(i) through (b)(1)(iii), respectively. This longstanding principle from the 1978 regulations that agencies should not improperly segment their actions is relevant not only when agencies are preparing EISs; rather, it is critical for agencies to consider this as part of the determination whether to prepare an EA or apply a CE. CEQ proposes to consolidate this text into § 1501.3(b) because the determination of the scope of the action, including any connected actions, necessarily informs the appropriate level of NEPA review. While 40 CFR 1501.9(e) currently applies to the scope of EISs, CEQ's proposed consolidation would clarify that this analysis is applicable not only to the scope of the environmental document itself but also to the determination of the level of NEPA document the agency must prepare. Because including this provision in § 1501.3 would make it applicable to environmental reviews other than EISs, CEQ proposes to strike the sentence that accompanied the text in 40 CFR 1502.4(a) directing the lead agency to determine the scope and significant issues for analysis in the EIS as part of the scoping process. CEQ would retain in § 1502.4(a), “Scoping,” the requirement that agencies determine the scope and significant issues for analysis in an EIS using an early and open process. CEQ proposes in § 1501.3(b)(1)(i) to likewise change “environmental impact statements” to “NEPA review.”

In bringing the text from 40 CFR 1501.9(e) to § 1501.3(b), CEQ is proposing to strike 40 CFR 1501.9(e)(2) and (3) relating to alternatives and impacts, respectively. The current CEQ regulations and the proposed revisions in this NPRM address the analyses of alternatives and effects regarding both EISs (§§ 1502.14, 1502.15) and EAs (§ 1501.5(c)(2)(ii) and (c)(2)(iii)). It would be premature in the process, unnecessary, and unhelpful to address alternatives as part of determining the level of NEPA review.

Sixth, CEQ proposes to redesignate 40 CFR 1501.3(a) as paragraph (c), title it “Levels of NEPA review,” and retain the existing paragraphs (1) through (3) without change. In paragraph (c), CEQ proposes to incorporate section 106(b)(3) of NEPA addressing the sources of information agencies may rely on when determining the appropriate level of NEPA review. While section 106(b)(3) only directly applies to an agency's determination whether to prepare an EA or an EIS, CEQ views the approach to reliable data and producing new research as consistent with longstanding practice and caselaw and appropriate to apply broadly to an agency's determination of the appropriate level of NEPA review, including a determination that no review is required. This approach avoids creating an implication that an agency could be required to conduct new research in a broader range of circumstances when making threshold determinations outside of whether to prepare an EA or EIS, for example in considering whether a CE applies. CEQ invites comment on this approach.

Seventh, CEQ proposes to redesignate 40 CFR 1501.3(b) as § 1501.3(d), title it “Significance determination—context and intensity,” and address factors agencies must consider in determining significance by restoring with some modifications the consideration of “context” and “intensity” from the 1978 regulations, which appeared in the definition of “significantly.”
See
40 CFR 1508.27 (2019). Because this text provides direction on how agencies determine the significance of an effect, rather than a definition, this is a more appropriate location for this provision than § 1508.1.

CEQ proposes to modify the introductory language in § 1501.3(d) by requiring agencies to consider the context of an action and the intensity of the effects when considering whether the proposed action's effects are significant. CEQ proposes to strike the sentence requiring agencies to consider connected actions because this concept would be included in proposed paragraph (c).

Paragraph (d)(1) would restore the consideration of the context of the proposed action as a standalone consideration. Specifically, CEQ proposes to restore language from the 1978 regulations requiring agencies to analyze the significance of an action in several contexts. The proposed provision also provides some examples of contexts for consideration. First, the provision proposes agencies should consider the characteristics of the relevant geographic area such as proximity to unique or sensitive resources or vulnerable communities. Such resources may include historic or cultural resources, Tribal sacred sites, and various types of ecologically sensitive areas. This proposal relates to the intensity factor proposed in (d)(2)(iii), which CEQ is proposing to restore from the 1978 regulations. CEQ is proposing to include it as a context factor as well since it relates to the setting of the proposed action. It also would encourage agencies to consider proximity to communities with environmental justice concerns.

Second, CEQ proposes that agencies should consider the potential global, national, regional, and local contexts, which may be relevant depending on the scope of the action, consistent with the current regulations as well as the 1978 regulations. Third, agencies should consider the duration of the potential effects and whether they are anticipated to be short- or long-term. To that end, CEQ proposes to move and revise text providing that the consideration of short- and long-term effects is relevant to the context of a proposed action from current 40 CFR 1501.3(b)(2)(i) to paragraph (d)(1).

The 2020 rule narrowed the “context” consideration to the potentially affected environment in determining significance, stating that this reframing relates more closely to physical, ecological, and socio-economic aspects of the environment.
59

CEQ has reconsidered this approach and now finds it to be overly limiting. Agencies have decades of experience analyzing their actions within this broader framing of “context.” Moreover, this use of “context” is consistent with CEQ's 2022 reinstatement of the concepts of indirect and cumulative effects. Additionally, the 2020 rule's tying of significance to the affected environment, “usually” only in the local area,
60

could be read as deemphasizing reasonably foreseeable effects beyond the immediate area of the action. The appropriate environment is the one that the agency has identified as the affected environment in § 1502.15, which can include the global, national, regional, and local environment. For example, leases for oil and gas extraction or natural gas pipelines have local effects, but also have reasonably foreseeable global indirect and cumulative effects related to GHG emissions.

59
2020 Final Rule,
supra
note 36, at 43322.

60
40 CFR 1501.3(b)(1) (“For instance, in the case of a site-specific action, significance would
usually
depend only upon the effects in the local area.”) (emphasis added).

CEQ also proposes to reinstate “intensity” as a consideration in determining significance, which CEQ reframed in the 2020 rule as the “degree” of the action's effects. In § 1501.3(d)(2), CEQ proposes to require agencies to assess the intensity of effects from an action and to provide a list of factors, some or all of which may apply to any given action, for agencies to consider in relation to one another, returning to the approach from 1978. In 2020, CEQ justified the removal of intensity as a consideration in part

based on the proposition that effects are not required to be intense or severe to be considered significant.
61

However, the intensity factors that CEQ proposes to reinstate with modifications have long provided agencies with guidance in how the intensity of an action's effects may inform the significance determination. CEQ does not consider “intense” to be a synonym for “significant;” rather, it points to factors to inform the determination of significance that are part of longstanding agency practice. CEQ also proposes to clarify that agencies should focus on adverse impacts in determinations of significance. This is consistent with NEPA's policies and goals as set forth in section 101 of the statute. 42 U.S.C. 4331.

61
2020 Final Rule,
supra
note 36, at 43322.

Paragraph (d)(2)(i) would mirror the 1978 rule's reference to beneficial effects with clarifying additions. CEQ proposes to state that only actions with significant adverse effects require an EIS. This is distinct from weighing beneficial effects against adverse effects to determine that an action's effects on the whole are not significant. Rather, this statement reflects the fact that an action with only beneficial effects and no significant adverse effects does not require an EIS, consistent with CEQ's proposed revisions to § 1501.3(d)(2), regarding the meaning of intensity.

CEQ proposes to add to paragraph (d)(2)(i) clarification that agencies should consider the duration of effects and provide an example of an action with short-term adverse effects but long-term beneficial effects. While significant adverse effects may exist even if the agency considers that on balance the effects of the action will be beneficial, the agency should consider any related short- and long-term effects in the same effect category together in evaluating intensity. For example, an agency should consider short-term construction-related GHG emissions from a renewable energy project in light of long-term reductions in GHG emissions when determining the overall intensity of effects. In this situation, the agency could reasonably determine that the climate effects of the proposed action would not be significantly adverse, and therefore an EIS would not be required. As another example, a forest restoration project may have a short-term adverse effect to a species by displacing it from the area while the project is carried out but have long-term beneficial effects to the species by reducing the risk that a severe wildfire will destroy the habitat altogether. An agency should consider both of these effects in assessing whether the action significantly affects the species, and may determine that the overall effects on the species would not be significantly adverse and therefore would not require an EIS.

In paragraph (d)(2)(ii), CEQ proposes to make a clarifying edit to the factor relating to the action's effects on health and safety by adding language indicating that the relevant consideration is “the degree to which” the proposed action may “adversely” affect public health and safety.

CEQ proposes to add in paragraph (d)(2)(iii) a factor to consider the degree to which the proposed action may adversely affect unique characteristics of the geographic area such as historic or cultural resources, Tribal sacred sites, parkland, and various types of ecologically sensitive areas. This would reinstate a factor from the 1978 regulations, with clarifying edits, which agencies have considered for decades. As noted earlier in this section, CEQ proposes to use the wording from the 1978 factor on unique characteristics because it is a context consideration. Consideration of this factor is consistent with both the definition of effects (§ 1508.1(g)) and the policies and goals of NEPA. 42 U.S.C. 4331.

In paragraph (d)(2)(iv), CEQ proposes to make a clarifying edit to the factor in 40 CFR 1501.3(b)(2)(iv) relating to actions that may violate Federal, State, Tribal, or local law by adding reference to “other requirements.” CEQ also proposes to include inconsistencies with policies designed for protection of the environment because agencies should not necessarily limit their inquiry to statutory requirements. Of course, it may be appropriate to give relatively more weight to whether the action threatens a law imposed for environmental protection as opposed to a policy, but policies imposed for the protection of clean air, clean water, or species conservation, for example, may nonetheless be relevant in evaluating intensity. CEQ invites comment on the inclusion of policies in this provision and whether the regulations should reference specific categories of policies.

Next, CEQ proposes to add paragraph (d)(2)(v) to consider the degree to which effects are highly uncertain. The 1978 regulations included factors for “controversial” effects and those that are “highly uncertain or involve unique or unknown risks.” CEQ proposes to restore a modified version of this concept that makes clear that the uncertainty of an effect is the appropriate consideration, and not whether an action is controversial. While a legitimate disagreement on technical grounds may relate to uncertainty, this approach would make clear that public controversy over an activity or effect is not a factor for determining significance.

CEQ proposes to add a factor to paragraph (d)(2)(vi) regarding the action's relationship with other actions. This would reinstate a factor from the 1978 regulations and reinforce the consideration of the scope of the action that agencies should consider in a NEPA document—that an agency cannot avoid significance by terming an action temporary when it is in fact a part of a repeating or ongoing action or segmenting it into smaller parts. This longstanding NEPA principle is consistent with decades of case law prohibiting the segmentation of actions.
See, e.g., Sierra Club
v.
Marsh,
769 F.2d 868 (1st Cir. 1985);
Kern
v.
U.S. Bureau of Land Mgmt.,
284 F.3d 1062 (9th Cir. 2002).

CEQ proposes to add a factor to paragraph (d)(2)(vii) relating to actions that would affect historic resources listed or eligible for listing in the National Register of Historic Places. This would generally reinstate a factor from the 1978 regulations, which agencies have decades of experience considering. Consideration of this factor furthers the policies and goals of NEPA, including to “preserve important historic, cultural, and natural aspects of our national heritage . . . .” 42 U.S.C. 4331.

CEQ proposes to add paragraph (d)(2)(viii) to include effects on an endangered or threatened species or its habitat, including critical habitat under the Endangered Species Act. 16 U.S.C. 1532(5). This would be an expansion of an intensity factor from the 1978 regulations, which only addressed critical habitat. CEQ's proposed revision would clarify that agencies should consider effects to the habitat of endangered or threatened species even if it has not been designated as critical habitat.

CEQ proposes to add paragraph (d)(2)(ix) to include consideration of the degree to which the action may have disproportionate and adverse effects on communities with environmental justice concerns. Evidence continues to accumulate that communities with environmental justice concerns often experience disproportionate environmental burdens such as pollution or urban heat stress, and often experience disproportionate health and other socio-economic burdens that make them more susceptible to adverse effects.

Finally, CEQ proposes to add paragraph (d)(2)(x) to include effects

upon the rights of Tribal Nations reserved through treaties, statutes, or Executive Orders. This proposed addition would clarify that agencies should consider how an action may impact the reserved rights of Tribal Nations. Tribes' ability to exercise these rights often depends on protection of the resources that support the rights, and agencies should consider impacts to such resources. CEQ specifically seeks comments from Tribes on this proposed addition.

CEQ invites comments on whether there are other considerations that should be added to the regulations to guide agency evaluation of the context and intensity of an effect as part of a determination of significance.

3. Categorical Exclusions (§ 1501.4)

CEQ proposes revisions to § 1501.4 to clarify this provision, which the 2020 rule added, and provide agencies new flexibility to establish CEs using additional mechanisms and flexibilities outside of their NEPA procedures to promote more efficient and transparent development of CEs that may be tailored to specific environmental contexts or project types.

First, CEQ proposes to edit § 1501.4(a) for consistency with and add a cross reference to § 1507.3(c)(8), which currently requires agencies to establish CEs in their NEPA procedures. This revision would more fully and accurately reflect the purposes of and requirements for CEs. As is reflected in the regulations, CEQ views CEs to be an important mechanism to promote efficiency in the NEPA process where agencies have long exercised their expertise to identify and substantiate categories of actions that normally do not have a significant effect on the human environment.

CEQ also proposes to add the clause “individually or in the aggregate” to § 1501.4(a)'s description of CEs. This proposal would clarify that when establishing a CE in its procedures, an agency must determine that the application of the CE to a single action and the repeated collective application to multiple actions would not have significant effects on the human environment. This clarification recognizes that agencies often use CEs multiple times over many years. This change is consistent with the definition of “categorical exclusion” provided by section 111(1) as a “category of actions,” which highlights the manner in which CEs consider an aggregation of individual actions. This change is similar to the 1978 regulations' definition of CEs as categories of actions that do not “individually or cumulatively” have significant effects, which the 2020 rule removed consistent with its removal of the term “cumulative impacts” from the regulations. The Phase 1 rulemaking reinstated cumulative effects to the definition of “effects,”
62

so the 2020 rule's justification for removing the phrase no longer has a basis. However, CEQ proposes to use the phrase “in the aggregate” rather than “cumulatively” to avoid potential confusion. Cumulative effects refer to the incremental effects of an agency action added to the effects of other past, present, and reasonably foreseeable actions. In the context of establishing CEs, agencies must consider both the effects of a single action as well as the aggregation of effects from anticipated multiple actions covered by the CE such that the aggregate sum of actions covered by the CE does not normally have a significant effect on the human environment. As part of this analysis, agencies consider the effects—direct, indirect, and cumulative—of the individual and aggregated actions. Because the definition of effects includes cumulative effects, CEQ considers the phrase “in the aggregate” to more clearly define what agencies must consider in establishing a CE—the full scope of direct, indirect, and cumulative effects of the category of action covered by the CE. Agencies have flexibility on how to evaluate whether the “aggregate” of actions covered by a CE will not ordinarily have significant effects and may consider the manner in which the agency's extraordinary circumstances may avoid multiple potential actions having reasonably foreseeable significant effects in the aggregate. As discussed further in section II.I.2 CEQ notes that agencies do not need to evaluate the environmental effects of establishing the CE itself, but rather define the category of action and demonstrate in its substantiation that the CE does not normally have significant effects in the absence of extraordinary circumstances. CEQ proposes to add a qualifying clause at the end of the sentence to reference extraordinary circumstances consistent with § 1501.4(b), and add a definition of “extraordinary circumstances” at § 1508.1(m). These provisions are consistent with longstanding practice and recognize that, as the definition provided by section 111(1) indicates, CEs are a mechanism to identify categories of actions that normally do not have significant environmental effects. Extraordinary circumstances serve to identify actions within a category of actions the effects of which exceed those normally associated with that category of action and therefore, do not fall within the bounds of the CE.

62
Phase 1 Final Rule,
supra
note 47, at 23469.

Finally, CEQ also proposes to add at the end of paragraph (a) language clarifying that agencies may establish CEs individually or jointly with other agencies. In such cases, agencies may use a shared substantiation document and list the CEs in both agencies' NEPA procedures or identify them through another joint document as provided for by proposed § 1501.4(c). CEQ proposes this addition to provide an additional mechanism for establishing CEs transparently and with appropriate public process. Agencies may find value in establishing a CE jointly for activities that they routinely work on together where having a CE would create efficiency in project implementation. Agencies also may save administrative time by establishing CEs jointly.

CEQ proposes edits to § 1501.4(b)(1) to clarify the standard for applying a CE to a proposed action where extraordinary circumstances exist: an agency may apply a CE if the agency determines that a proposed action does not have the potential to result in significant effects, or the agency modifies the proposed action to address the extraordinary circumstance. This standard is consistent with agency practice and has been upheld in case law. As currently drafted, 40 CFR 1501.4(b)(1) could be construed to mean that agencies may mitigate extraordinary circumstances that would otherwise have the potential for significant effects and thereby apply a CE with no opportunity for public review or engagement on such actions. While the 2020 Response to Comments sought to distinguish “circumstances that lessen the impacts” from required mitigation to address significant effects,
63

based on CEQ's discussions with agency representatives and stakeholders, the potential for confusion remains. CEQ's proposed standard makes clear that if an extraordinary circumstance exists, an agency must make an affirmative determination that there is no potential for significant effects in order to apply a CE. If it finds such potential it must either: (1) modify its proposed action in a way that will address the extraordinary circumstance, or (2) prepare an EA or EIS.

63
CEQ, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act Final Rule Response to Comments 130 (June 30, 2020) (“2020 Response to Comments”),
https://www.regulations.gov/document/CEQ-2019-0003-720629.

CEQ also proposes to add a documentation requirement in these

instances where an agency is applying a CE notwithstanding extraordinary circumstances. CEQ also proposes to add language encouraging agencies to publish such documentation. While not required, CEQ encourages agencies to publish documentation of instances where an agency is applying a CE notwithstanding extraordinary circumstances to provide transparency to the public of an agency determination that there is no potential for significant effects. The proposed language responds to feedback from the public requesting such transparency. CEQ invites comment on whether it should require agencies to publish such documentation.

In addition, CEQ proposes to add a new § 1501.4(c) to provide agencies more flexibility to establish CEs outside of their NEPA procedures. This provision would allow agencies to establish CEs through a land use plan, a decision document supported by a programmatic EIS or EA, or other equivalent planning or programmatic decisions. Once established, agencies could apply CEs to future actions addressed in the program or plan, including site-specific or project-level actions. CEQ anticipates that expanding the mechanisms through which agencies may establish CEs will encourage agencies to conduct programmatic and planning reviews, increase the speed with which agencies can establish CEs while ensuring public participation and adequate substantiation, promote the development of CEs that are tailored to specific contexts, geographies, or project-types, and allow decision makers to consider the cumulative effects of related actions on a geographic area over a longer time frame than agencies generally consider in a review of a single action. This provision would not require agencies to establish CEs through the mechanism added in § 1501.4(c) but rather would provide new options for agencies to consider. CEQ also notes that this mechanism does not preclude agencies from conducting and relying on programmatic analyses in making project-level decisions consistent with § 1501.11. Additionally, it does not require agencies to conduct a NEPA analysis to establish CEs generally, consistent with § 1507.3(c)(8).

Establishing a CE through this alternative approach could be beneficial by providing agencies with more flexibility on how to identify categories of actions that normally will not have significant effects and establishing a CE for them. A programmatic EIS supporting a program decision or land use plan could, for example, provide the analysis necessary to substantiate a new CE established by the associated decision document that makes sense in the context of the overall program decision or land use plan. For example, a land management agency could consider establishing a CE for zero or minimal impact resilience-related activities. Enabling an agency to establish a CE through this mechanism would reduce duplication of effort by obviating the need for the agency to revise their NEPA procedures consistent with § 1507.3 after completing the programmatic EIS. Agencies also may find it efficient to establish a CE through a land use planning process rather than undertaking a separate process to establish the CE via agency procedures after completion of the land use planning process.

Paragraphs (c)(1) through (c)(6) would set forth the requirements for the establishment of CEs through mechanisms other than an agency's NEPA procedures. Paragraphs (c)(1) and (c)(2) would require agencies to provide CEQ an opportunity to review and comment and provide opportunities for public comment. Agencies may satisfy the requirement for notification and comment under paragraph (c)(2) by incorporating the proposed CEs into any interagency and public review process that involves notice and comment opportunities applicable to the relevant programmatic or planning document.

Proposed paragraphs (c)(3) and (c)(4) would include the same requirements for agencies to substantiate CEs and provide for extraordinary circumstances when they establish CEs under this section as when they establish CEs through their agency NEPA procedures pursuant to § 1507.3. Specifically, first, agencies would have to substantiate their determinations that the category of actions covered by a CE normally will not result in significant effects, individually or in the aggregate. Second, agencies would need to identify extraordinary circumstances. This could be the same list set forth in the agency's NEPA procedures, a list specific to this set of CEs, or a combination of both. While agencies would need to satisfy these requirements in a manner consistent with the establishment of CEs under § 1507.3, agencies could document their compliance with these requirements in the relevant programmatic or planning documents.

Proposed paragraph (c)(5) would direct agencies to establish a process for determining that a CE applies to a specific action in the absence of extraordinary circumstance, or determine the CE still applies notwithstanding the presence of extraordinary circumstances. Finally, paragraph (c)(6) would direct agencies to maintain a list of all such CEs on their websites, similar to the requirement for agencies to publish CEs established in their agency NEPA procedures consistent with §§ 1507.3(b)(2) and 1507.4(a). Agency websites should clearly link the CEs to their underlying programmatic or planning documents. Additionally, agencies may want to incorporate CEs established through these mechanisms into their agency NEPA procedures during a subsequent revision. CEQ encourages agencies to list all agency CEs in one location, regardless of how the agency established the CE, so that the public can easily access the full list of an agency's CEs.

Proposed § 1501.4(d) would identify a list of examples of features agencies may want to consider including when establishing CEs, regardless of what mechanism they use to do so. Paragraph (d)(1) would note that CEs may cover specific geographic areas or areas that share common characteristics, such as a specific habitat type for a given species.

To promote experimentation and evaluation, paragraph (d)(2) would indicate that agencies may establish CEs for a limited duration. Doing so would enable agencies to narrow the scope of analysis necessary to substantiate that a class of activities normally will not have a significant environmental effect where uncertainty exists about changes to the environment that may occur later in time that could affect the analysis. As with all CEs, agencies should review their continued validity periodically, consistent with CEQ's proposed review timeframe in § 1507.3(c)(9). Once the limited duration threshold is met, agencies could either consider the CE expired, conduct additional analysis to create a permanent CE, or reissue the CE for a new period.

Paragraph (d)(3) provides that a CE may include mitigation measures to address potential significant effects. A CE that includes mitigation is different than an agency modifying an action to avoid an extraordinary circumstance that would otherwise require preparation of an EA or EIS. Paragraph (d)(3) makes clear that an agency may establish a CE for a class of activities that include mitigation requirements as part of the CE application. Agencies would implement the activities covered by the CE as well as the mitigation incorporated into those activities as part of the CE. As an illustrative example, an agency could conclude that, as a category, a type of activity that degrades five acres of habitat will not ordinarily have significant effects where five acres

of equivalent habitat are effectively restored or conserved elsewhere. As another example, a CE could allow for vegetation management activities but require specific mitigation if a certain habitat type is disturbed, such as implementing vegetation activities on 10 acres of sage grouse habitat and requiring restoration or compensatory mitigation for an equivalent 10 acres of sage grouse habitat. Where an agency establishes a CE with a mitigation requirement, the agency would need to include such mitigation in their proposed actions in order for the CE to apply.

Paragraph (d)(4) would provide that agencies can include criteria for when a CE might expire, such that, if such criteria were present, the agency could no longer apply that CE. For example, an agency could establish a CE for certain activities up to a threshold, such as a specified number of acres or occurrences. Once the agency applied that CE up to the threshold number of proposed actions, the agency could no longer use the CE. An agency might set an expiration date or threshold where their record indicates a potential for significant effects after a certain number of applications of the CE to proposed actions; where there is uncertainty beyond that threshold; or where it is unclear how widely the agency would apply the CE. In other situations, an agency may want to make a CE time limited because its authority over the actions is likewise time limited.

Finally, CEQ proposes to strike the provision that would allow an agency to establish a process in its agency NEPA procedures to apply a CE listed in another agency's NEPA procedures in 40 CFR 1507.3(f)(5) and replace it with a provision in § 1501.4(e) that is consistent with the process for adoption established by section 109 of NEPA. While section 109 uses the term “adopt” CEQ is proposing to use “apply” to distinguish this provision from the longstanding use of “adoption” in the CEQ regulations to refer to an agency's reliance on another agency's previously completed analysis, including the determination that a CE applies to a proposed action.

First, paragraph (e)(1) would require the borrowing agency to identify the proposed action or category of proposed actions that falls within the CE. In instances where an agency would like to use the CE on a long-term basis, CEQ encourages agencies to establish the CE either in their own procedures or through the process set forth in § 1501.4(c). However, this provision would serve as an important bridge when agencies are implementing new programs where they have not yet established relevant CEs or when existing programs begin to undertake new categories of actions but where other agencies have experience with similar actions and have established a CE for those actions. In these circumstances, the agency could immediately begin to implement the new programs and new activities based on another agencies CE for similar actions without the need to first develop a CE to cover them. CEQ also notes that, consistent with the requirement of section 109(2) that an agency consult with “the agency that established the categorical exclusion,” this provision would only apply to CEs established administratively by the agency, including those that Congress directs agencies to establish administratively, but not those CEs created by statute. While CEQ encourages agencies to include legislative CEs established by statute in their NEPA procedures to provide transparency, they are not “established” by the agency, but rather by Congress. CEQ invites comment on this approach.

Second, under paragraph (e)(2), the borrowing agency would consult with the agency that has the listed CE to ensure application of the CE is appropriate. Third, under paragraph (e)(3), the borrowing agency would evaluate for extraordinary circumstances, consistent with § 1501.3(b) to incorporate the process for documenting use of the CE when extraordinary circumstances are present, but application of the CE is still appropriate. Finally, under paragraphs (e)(4) and (e)(5), the borrowing agency would document application of the CE, provide public notice of the CE that the agency plans to use, and publish the documentation of the application of the CE. Neither the statute or the proposed regulation requires the agency to accept comment on the public notice of the CE that the agency plans to use. In cases where an agency is applying CEs to a category of actions, the agency could conduct a single consultation and publish a consolidated notice, for example. CEQ invites comment on its proposed process. CEQ invites comment on whether the regulations implementing section 109 should include additional provisions to facilitate the use of CEs while ensuring CEs are not used improperly to authorize actions that have reasonably foreseeable significant effect.

CEQ notes that there has been some confusion regarding the difference between the use or borrowing of another agency's CE proposed in § 1501.4(e), which section 109 of NEPA refers to as adoption and is currently provided by 40 CFR 1507.3(f)(5) and adoption of a CE determination under § 1506.3(d). In the latter case of adoption of a CE determination, an agency with a CE has applied the CE to its own proposed action. A second agency then

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-15405. Public record. Not legal advice.