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Review and Analysis by Rocky Smith
June 13, 2024
The Council on Environmental Policy (CEQ) has issued its long-awaited Phase II rule implementing the National Environmental Policy Act (NEPA). It largely repairs the damage done to this rule by the previous Presidential administration. But unfortunately, it has some bad provisions, most of which were mandated by amendments to NEPA passed by Congress and signed by the President in the Fiscal Responsibility Act of 2023 (FRA).
BRIEF HISTORY OF NEPA AND ITS IMPLEMENTING REGULATIONS. The National Environmental Policy Act was signed into law on January 1, 1970 by then-President Richard Nixon. Various interim regulations were promulgated by the CEQ, with a final rule issued in 1978. Except for minor amendments in 1979 and 1986, the 1978 rule remained intact until the Trump Administration issued a significantly revised, and much weaker, final rule on July 16, 2020. Among other items, this rule essentially made consideration of cumulative impacts optional.
Upon taking office, the Biden Administration immediately announced its intention to change the 2020 rule. It issued an interim final rule on June 29, 2021, delaying required revision of agency NEPA procedures and announcing its intention to substantially revise the 2020 rule. In furtherance of the latter, it began by issuing a draft rule on October 7, 2021 and a final rule on April 20, 2022, rescinding some of the worst provisions of the 2020 rule and indicating a full revision of the 2020 rule was forthcoming. A draft full new rule was issued on July 31, 2023, and the final rule (reviewed below) was published on May 1, 2024 (89 Fed Reg 35542 et seq.).
THE NEW FULL CEQ RULE IMPLEMENTING NEPA
Citations are to the new rule unless otherwise indicated.
SIGNIFICANCE. The detailed definition of “significantly” in section 1508.27 of the 1978 rule has largely been restored with a few important exceptions. 1501.3(d). The criterion of whether an action is controversial has been removed. This has long been taken to mean to determine if potential impacts of a proposed action were scientifically controversial rather than the action itself being controversial with the public. (1)
However, 1501.10(d) lists the following among the factors a lead agency can consider in setting schedules and deadlines (see more on these below) for NEPA documents:
(1) Potential for environmental harm. …
(7) Degree to which a substantial dispute exists as to the size, location, nature, or consequences of the proposed action and its effects.“Substantial dispute” here is the same as “controversy” in section 1508.27 of the 1978 rule, as CEQ explains in the discussion on its rationale for section 1501.10:
this change [is] consistent with case law interpreting the term ‘‘controversial,’’ as used in the 1978 regulations as distinct from general public controversy or opposition.
Preamble at 35488. The text then cites several instances from case law on this, including the following direct quote:
A project is ‘highly controversial’ [under the 1978 regulations] if there is a ‘substantial dispute about the size, nature, or effect of the major Federal action rather than the existence of opposition to a use.’
Ibid., citing Native Ecosystems Council v. United States Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005).
The contradiction here is striking - it’s as if one part of the CEQ doesn’t know what another part is doing.
Also omitted from the new rule concerning significance is whether the action subject to NEPA “may establish a precedent for future actions with significant effects” 1508.27(b)(6) (1978). (2)
SEGMENTING ACTIONS TO AVOID A FINDING OF SIGNIFICANCE. Importantly, the new rule retains language from the 1978 rule that prohibits breaking down actions into smaller pieces so that significance can be avoided:
The agency shall not avoid a determination of significance under paragraph (c) of this section by terming an action temporary that is not temporary in fact or segmenting an action into smaller component parts. The agency also shall consider whether there are connected actions, which are closely related Federal activities or decisions that should be considered in the same NEPA review…
1501.3(b); a definition of connected actions follows in the rule.
PUBLIC NOTIFICATION AND INVOLVEMENT. The new rule contains a detailed section on the responsibilities of federal agencies to inform the public. It is largely good. The introduction to this section reads, in part:
The purpose of public engagement is to inform the public of an agency’s proposed action, allow for meaningful engagement during the NEPA process, and ensure decision makers are informed by the views of the public.
1501.9(a).
Section 1501.9(b)(5)(iii) has a long list of possible ways to notify potentially interested parties of a proposed action. However, the agency has the discretion to “determine the appropriate methods of public and governmental engagement for their proposed actions.” 1501.9(a).
A likely well-intended provision on availability of documents reads:
Make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of the Freedom of Information Act, as amended (5 U.S.C. 552), and without charge to the extent practicable.
1501.9(c)(6). This could be interpreted by recalcitrant agencies to mean that they can make all parties requesting documents go through the formal, and often long and aggravating, process of requesting materials under FOIA, rather than just supplying material upon request. But hopefully, it will encourage agencies to make documents readily available.
This provision should apply to EAs as well, but there is no explicit requirement for that here.
CATEGORICAL EXCLUSIONS. As the old rule did, the new rule (1501.4, 1507.3(c)(8)) requires agencies, in their own NEPA procedures, to establish categories of actions that individually and collectively will have no significant impacts, subject to extraordinary circumstances, i. e., situations that might cause an otherwise benign project or activity to have significant effects.
In establishing its NEPA procedures, agencies “shall consult with [CEQ]” and publish proposed procedures in the Federal Register for public comment. 1507.3(b)(1). For CEs, agencies must:
Substantiate the proposed new or revised categorical exclusion with sufficient information to conclude that the category of actions does not have a significant effect, individually or in the aggregate, on the human environment and provide this substantiation in a written record that is made publicly available as part of the notice and comment process…
1507.3(c)(8)(ii). This language was not in the 1978 rule.
In addition to CEs established with this process, agencies can establish CEs through land use plans or other programmatic documents. 1501.4(c). CEQ must review such determinations, which are also subject to: public review and comment, determination of extraordinary circumstances, and a process for determining how the new CE applies to a particular action.
These CEs so designated can be of limited duration:
Agencies may establish CEs for limited durations when doing so will enable them to narrow the scope of analysis necessary to substantiate that a class of activities normally will not have a significant environmental effect where uncertainty exists about changes to the environment that may occur later in time that could affect the analysis or where an agency anticipates that the frequency of actions covered by a CE may increase in the future.
Preamble at 35473. It would seem that possibly significant cumulative impacts could occur in the situation described above. CEs are inappropriate here, but CEQ specifically provides for their establishment and use.
Agencies could adopt the CE of any other agency and apply it to a proposed action or category of proposed actions. To do so, agencies seeking to adopt a CE would have to consult with the agency that originally formulated the CE to see if adopting the CE for the identified actions or categories of them is appropriate. The adopting agency would also have to: evaluate extraordinary circumstances when applying the adopted CE, notify the public, and publish documentation of application of the adopted CE. 1501.4(e); see also 1506.3(d). However, public comment on adoption of another agency’s CE is specifically not required. See Preamble at 35475.
Agencies in their NEPA procedures must have a process for re-evaluating their CEs at least every 10 years. It can be done on a revolving basis, with the oldest CEs being done first. 1507.3(c)(9).
Though there might arguably be enough safeguards here for establishing CEs to prevent or at least reduce their abuse by agencies, I still think the intent is to allow, if not encourage, agencies to develop and use more CEs. In general, that is not good, as it will mean that more projects get approved without sufficient environmental review, even without further direction from Congress to exclude larger and larger areas from NEPA review. (3)
In the recent past, CEQ has approved some pretty bad NEPA procedures from the Forest Service. And notably under the new rule:
The Council has determined that the revisions to this subchapter as of July 1, 2024 do not affect the validity of categorical exclusions contained in agency NEPA procedures as of this date
1507.3(a). Thus all the bad sets of agency procedures CEQ has already ratified are further insulated from its review. Also, agency NEPA procedures themselves, both new and updated ones, are not, and in the future will not be, subject to NEPA review under the Rule. 1507.3(b)(3). See more below under Agency Procedures.
As part of it NEPA procedures for establishing CEs, agencies are directed to:
Identify when documentation of a determination that a categorical exclusion applies to a proposed action is required…
1507.3(c)(8)(i). This implies that in some cases, agencies might not have to document why a CE applies (or not) to a proposed action. That is indeed the case - see Preamble at 35469. Unless required by their own procedures, agencies will not have to “provide public notice in advance of using a CE” nor “publish documentation of every CE determination.” Ibid; see also id. at 35533.
If I am reading this accurately, it means agencies could approve CE categories and individual projects with CEs without even notifying the public, unless such notification was required by the agency’s NEPA procedures. Currently, the Forest Service’s NEPA procedures do require scoping for projects that “would appear to be excluded from further analysis and documentation in an EA or an EIS (220.6)”. 36 CFR 220.4(e). However, the section on scoping under Categorical Exclusions, 220.6(c), does not say that projects for which a CE may be done specifically need to be scoped.
Agencies are further directed to:
Substantiate the proposed new or revised categorical exclusion with sufficient information to conclude that the category of actions does not have a significant effect, individually or in the aggregate, on the human environment and provide this substantiation in a written record that is made publicly available as part of the notice and comment process…
1507.3(c)(8)(ii). This is good language, but it won’t likely stop agencies like the Forest Service from issuing unjustified and inappropriate CEs, as it did in its most recent revision of its NEPA procedures in 2020.
Furthermore, agencies must: “[d]escribe how the agency will consider extraordinary circumstances”. 1507.3(c)(8)(iii). When an agency proposes to use a CE, it must analyze and document that extraordinary circumstances (i. e., effects that normally would not occur with projects in the same category) will not cause potentially significant effects and thus will not prevent use of the CE, or modify the project to avoid possible significant impacts. 1501.4(b). The agency must document this determination, but is only encouraged, not required, to publish it or “make it otherwise publicly available”. 1501.4(b)(1); see also Preamble at 35471. CEQ does not require agencies to make these determinations publicly available “because it could burden agency resources and undermine the efficiency of the CE process.” Ibid. This once again demonstrates CEQ’s fascination if not obsession with agencies developing and using CEs.
ENVIRONMENTAL ASSESSMENTS AND MITIGATION
The rule does not require agencies to allow comment on an environmental assessment (EA). However, if a draft EA is published, public comment must be allowed, and the agency must consider the comments in preparing the final EA. 1501.5(e).
Another provision states:
Agencies shall involve the public, State, Tribal, and local governments, relevant agencies, and any applicants, to the extent practicable in preparing environmental assessments…
1501.5(f).
Scoping is not required for EAs, but agencies “should consider” it. 1501.9(b). (4)
Per the FRA, EAs are limited to 75 pages, exclusive of citations and appendices. 1505.1(g). On its face, this is limitation ridiculous, as many projects documented with EAs are complex; limiting the analysis of impacts to 75 pages would ensure that the analysis was, at best, incomplete. In practice, however, agencies will hopefully evade this problem by providing relevant information via links to specialist analyses and putting at least some relevant info in appendices. (5) In any case, EA reviewers should be on the lookout for inadequate analyses in EAs, even more so than we are now.
Under 1505.5(j), agencies should generally apply 1502.21, which is the procedure for addressing incomplete or unavailable information when preparing EISs. This section of the new rule is very similar to section 1502.22 of the 1978 rule.
When “appropriate to improve efficiency and effectiveness of environmental assessments, agencies may apply the other provisions of part[s] 1502 and 1503 of this subchapter, to EAs, including: 1502.4 [scoping]; 1502.22 [cost-benefit analysis]; 1502.24 [other consultation requirements, as for ESA and NHPA]; and 1503.4 [response to comments]”. Agencies are not required to do any of this for EAs, but should be, especially consultation and response to comments.
If a project ROD or FONSI incorporates mitigation, or if the effects analysis relies on the successful implementation of mitigation, the FONSI must so state, and also: identify what monitoring and compliance efforts will be undertaken, the authority for enforcement of the stated mitigation, and develop a monitoring and compliance (M & C) plan. 1501.6(b)(2)(ii) and (d); 1505.2(c)(1) and (2) (see quote below); and 1505.3(c).
The same applies for EISs, when the record of decision incorporates mitigation, and the effects analysis assumes application of the stated mitigation. 1505.2(c), 1505.3(c). Agencies:
shall identify the authority for enforceable mitigation, such as through permit conditions, agreements, or other measures, and prepare a monitoring and compliance plan…
1505.2(c).
Agencies must also “[c]ondition funding of actions on mitigation”. 1505.3(a)(2). M & C plans must state “[h]ow the mitigation will be funded.” 1505.3(d)(6).
The M & C plan is tailored to the complexity of the mitigation. It must: list the parties who will implement the mitigation, how it will be funded, and determine standards for defining compliance. 1505.3(d). However, EAs, EISs and their accompanying FONSIs and RODs do not need to be changed solely on the basis of new information discovered via the M & C plan. 1505.3(e). CEQ fears that such a requirement might encourage agencies to compose weak M & C plans. Preamble at 33519.
Agencies are encouraged to include mitigation for environmental justice concerns. 1505.2(b).
These are good measures, which are stronger than those in the 1978 rule. They will require agencies to indicate how mitigation will actually be applied, rather than just saying that it will be applied. In practice, of course, agencies like the Forest Service will continue to avoid compliance with this provision by insisting that a project’s “design features” or “design elements” will be applied and will be effective in minimizing impacts, therefore, no after-the-fact mitigation will be needed. Indeed, the 1505.2(c) specifically
does not require agencies to include enforceable mitigation measures in every decision subject to NEPA or require them to adopt mitigation in any circumstance.
Preamble at 35516.
LIMIT ON ACTIONS DURING NEPA DOCUMENT PREPARATION. Before issuing a finding of no significant impact (FONSI) or record of decision (ROD), agencies must not take any action that could “(1) Have an adverse environmental effect; or (2) Limit the choice of reasonable alternatives. 1506.1(a). If an applicant (i. e., a non-agency action proponent) is about to take action that would fall into either of these categories,
the agency shall promptly notify the applicant that the agency will take appropriate action to ensure that the objectives and procedures of NEPA are achieved…
1506.1(b).
PROGRAMMATIC DOCUMENT LONGEVITY. Under section 1501.11, programmatic documents, which include both EAs and EISs, can be used “to evaluate the environmental effects of policies, programs, plans, or groups of related activities.” 1506.11(a). These documents are assumed to be valid forever
so long as the agency reevaluates the analysis in the programmatic environmental document and any underlying assumption to ensure reliance on the analysis remains valid.
1501.11(c)(2).
This was required by FRA, which added a section 108 to NEPA with this provision. It reverses the emphasis in long-standing CEQ guidance under which EISs older than five years were assumed to be in need of updating. See: Questions and Answers About the NEPA Regulations, Question 32, 46 Fed Reg 18027, March 16, 1981. Under the new rule, agencies must document any reevaluation and explain why an older programmatic document remains valid. However, a re-evaluation does not have to be made public unless it results in a need for supplementation of the programmatic environmental document. Preamble at 35492.
One positive feature of the new rule’s provisions for programmatic documents is that a “programmatic environmental document shall identify any decisions or categories of decisions that the agency anticipates making in reliance on it.” 1501.11(a)(3).
Agency NEPA procedures must include a process for re-evaluating and supplementing EAs and EISs. 1507.3(c)(10).
ENVIRONMENTAL IMPACT STATEMENTS. Per section 102 2 C of NEPA, EISs are required for “every Federal agency recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment”. 1502.3. (See discussion under Significance above). Note the definition/description of “major federal action”. at 1508.1(w). It continues to include: “Adoption of formal plans,…which prescribe alternative uses of Federal resources, upon which future agency actions will be based.” (w)(1)(iii). This would presumably include national forest management plans (6) and BLM resource management plans.
However, it does not include, among other items, the following:
- general revenue sharing money, loans, and loan guarantees, where the federal agency does not control how the money is spent;
- “[j]udicial or administrative civil or criminal enforcement actions”;
- actions that occur entirely outside the U. S.;
- non-discretionary actions, i. e., those required by law; and
- some Tribal actions.
1508.1(w)(2)(B).
This is a change from the 1978 rule, under which the following were considered major federal actions: “[p]rojects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies…”. 1978 rule at 1508.18(a). This change may result in some projects and activities escaping NEPA documentation.
The new rule retains 1978 rule language prohibiting agencies from taking actions “prejudicing the selection of alternatives before making a decision”. 1502.2(f); see also 1506.1. Also retained is language requiring EISs to assess impacts of a proposal “rather than justifying decisions already made”. 1502.2(g); see also 1502.5.
EISs are limited to 150 pages, except 300 pages (7) “for proposals of extraordinary complexity”. 1502.7, adopting language from the FRA. As with the page limits for EAs, this is inappropriate, as it would be impossible to adequately disclose in 300 pages all the impacts of almost any project or activity for which an EIS is prepared, let alone the very large ones the agencies have recently become fond of doing. As with EAs, agencies may be able to rely on referenced documents or information in appendices which are available to the public to stay within these page limits while still disclosing the impacts.
Section 1502.9(b) retains language that requires a supplemental EIS if “a draft statement is so inadequate as to preclude meaningful analysis”. Also retained is language requiring agencies to “discuss all major points of view on the environmental effects of the alternatives, including the proposed action”. Supplements must also be prepared if an agency makes substantial changes to its proposal or if “[t]here are substantial new circumstances or information about the significance of adverse effects that bear on the analysis.” 1502.9(d)(1)(i) and (ii). This is the same as the 1978 rule.
As for comments, FEISs
shall consider and respond to comments as required in part 1503 of this subchapter. At appropriate points in the final statement, the agency shall discuss any responsible opposing view that was not adequately discussed in the draft statement and shall indicate the agency’s response to the issues raised.
1502.9(c). This restores language in the 1978 rule at 1502.9(b) (1978), with a minor modification by adding “consider and” in front of “respond”.
Section 1502.14 restores the following language from the 1978 rule: “[t]he alternatives section is the heart of the environmental impact statement.” It also restores the following important requirement: agencies shall (a) Rigorously explore and objectively [all] evaluate reasonable alternatives to the proposed action…”. The new rule omits “all”.
Alternatives must be: “technically and economically feasible”. 1507.2(g). The concept of considering “reasonable alternatives not within the jurisdiction of the lead agency” (1978 rule at 1502.14(c)) has been changed from “shall” to “may”. 1502.14(a). CEQ expects this would be only done in frequently and in limited situations. Such alternatives considered must still be technically and economically feasible, and otherwise meet the definition of reasonable alternatives”. (8) Preamble at 35503.
Section 1502.14(f) (see also 1505.2(b)) requires identification of an environmentally preferable alternative(s), i. e., those that “best promote the national environmental policy” in section 101 of NEPA by: “addressing climate change-related effects or disproportionate and adverse effects on communities with environmental justice concerns”; “protecting, preserving or enhancing” Tribal rights and historical resources, “or causing the least damage to the biological and physical environment”. This greatly expands on the requirements for consideration of the environmentally preferable alternative in the 1978 rule, which addressed this issue at 1502.14(e) and 1505.2(b) (1978).
Requirements for the affected environment section of EISs are expanded to include the following:
Agencies shall use high-quality information, including reliable data and resources, models, and Indigenous Knowledge, to describe reasonably foreseeable environmental trends, including anticipated climate-related changes to the environment,…
1502.15(b).
Concomitantly, requirements for the environmental consequences section of EISs have been expanded to include disclosure of the following:
climate change related effects, including, where feasible, quantification of greenhouse gas emissions, from the proposed action and alternatives and the effects of climate change on the proposed action and alternatives
1502.16(a)(6). (9) Disclosure is also required in EISs for “disproportionate and adverse human health and environmental effects on communities with environmental justice concerns.” 1502.16(a)(13). This is not explicitly required for EAs.
THIRD PARTY DOCUMENT PREPARATION. Per section 107(f) of NEPA, applicants are allowed to prepare NEPA documents. See 1505.6(b)(3). However, agencies retain responsibility:
Agency responsibility. The agency is responsible for the accuracy, scope (§ 1501.3(b) of this subchapter), and content of environmental documents and shall ensure they are prepared with professional and scientific integrity, using reliable data and resources, regardless of whether they are prepared by the agency or a contractor under the supervision and direction of the agency or by the applicant under [agency] procedures…
1505.6(a). For applicant-supplied info:
The agency shall independently evaluate the information submitted by the applicant and, to the extent it is integrated into the environmental document, shall be responsible for its accuracy, scope, and contents.
1505.6(b)(2).
Where the agency hires a contractor to prepare documents, the same requirements as for applicant-hired contractors apply. See 1506.5(c)(2). In addition, the lead agency (or some cases, a cooperating agency):
shall prepare a disclosure statement for the contractor’s execution specifying that the contractor has no financial or other interest in the outcome of the action.
1505.6(c)(4). This restores language from the 1978 rule (1506.5(c) (1978)).
Contractors cannot be allowed to prepare FONSIs or RODs. Agency procedures must include this prohibition. 1507.3(c)(12)(iii).
PROFESSIONAL AND SCIENTIFIC INTEGRITY. Section 1502.24 in the 1978 rule, Methodology and Scientific Accuracy, is moved to 1506.6 and greatly expanded. Agencies must ensure the professional and scientific integrity of NEPA documents. 1506.6(a); see also 1507.2(e). They also: “shall use high quality information, including reliable data and resources, models, and Indigenous Knowledge.” 1506.6(b).
Agencies can use models, but they must “explain any relevant assumptions or limitations of the information or the particular model or methodology selected for use”. Ibid.
RESPONSE TO COMMENTS ON EISs. Agencies must “consider and respond” to comments on EISs, pursuant to 1502.9(c). Specifically, agencies must:
discuss any responsible opposing view that was not adequately discussed in the draft statement and shall indicate the agency’s response to the issues raised.
Ibid. This is also carried over from the 1978 rule.
Under 1503.4(a), agencies must “respond to individual comments or groups of comments.” They also are required to:
append or otherwise publish all substantive comments received on the draft statement (or summaries thereof where the response has been exceptionally voluminous).
1503.4(b). All of this is similar to language in the 1978 rule, but probably a little stronger.
Under new section 1502.17, draft EISs or appendices thereto shall include at least a summary of scoping comments. This requirement was not part of the 1978 rule.
Agencies must provide for electronic submission of comments. 1503.1(c).
Section 1503.3 reminds DEIS commenters to make comments as specific as possible and to state why the issues raised are important to consideration of potential environmental effects and/or alternatives. Commenters are also asked to supply any relevant studies, data, or other information to support their issues.
DEADLINES AND SCHEDULES. Per FRA, under section 1501.10, agencies must set deadlines and schedules for actions or groups of them. EAs must be completed within one year, EISs within two years. The lead agency can extend these times “in consultation with any applicant”. 1501.10(b)(1) and (2). Lead agencies must report to Congress annually on any missed deadlines. 1501.10(b)(5).
Lead agencies shall, with consultation with cooperating agencies and any applicant, set “milestones for all environmental reviews, permits, and authorizations required for implementation of the action”. 1501.10(c).
The above is required by the FRA, which added a new section 107 to NEPA. (10)
Sections 1501.10(d) – (f) contain additional direction and guidance for developing schedules, which must be publicly available (subsection (h)). If schedules are changed, the changes must be published along with an explanation of why they were changed. However, agencies are specifically not required to publish schedules for EAs (though they are encouraged to do so) (Preamble at 35489) because this would “increase the administrative burden” on agencies.
Though there appear to be enough loopholes for agencies to avoid strict deadlines, I still think these provisions are bad. It is not always possible to accurately predict how long it will take to complete analysis on a complex project, as the depth, breadth, and intensity of impacts is often not known until the analysis of them is nearly done. And there are more and more complex projects these days, as agencies are doing landscape analyses covering over 100,000 acres of proposed treatments.
Environmental documents get delayed primarily because agencies are short-staffed. The staffing issue gets worse in the summer, with many Forest Service and BLM employees taking vacations and/or fighting fires.
AGENCY COMPLIANCE WITH NEPA. Agencies shall have the capability of complying with NEPA in terms of personnel and other resources. 1507.2. This repeats language from the 1978 rule. It is good in that it reminds agencies of their responsibility to have the resources to implement NEPA. But I am not sure how this requirement could be enforced, given skimpy budgets and agencies’ desires to minimize resources used for NEPA application, so that money can be better (to the agencies) spent to accomplish targets such as timber sale volume.
Under the new rule, agencies shall:
Designate a senior agency official to be responsible for overall review of agency NEPA compliance, including resolving implementation issues, and a Chief Public Engagement Officer to be responsible for facilitating community engagement in environmental reviews across the agency…
1507.2(a). This is new language, and would probably be good, as it makes one person responsible for seeing that the agency implements NEPA. Complaints about field offices not properly implementing NEPA and the CEQ rule could be directed to that person. However, “senior agency official” is defined in the rule as follows:
Senior agency official means an official of assistant secretary rank or higher (or equivalent) that is designated for overall agency NEPA compliance, including resolving implementation issues.
1508.1(ll) (el el)).
Assistant secretaries are always political appointments subject to Senate conformation. This means that the person in charge of an agency’s implementation of NEPA will promote the policies of the administration then in power. As we have seen from some previous administrations, some politicians don’t like NEPA. Application of NEPA should be above politics, as impacts to air, water, soil, forests, plants and animals etc., occur from projects and activities no matter who is in power.
Agencies shall also:
Identify methods and procedures required by section 102(2)(B) of NEPA to ensure that presently unquantified environmental amenities and values may be given appropriate consideration.
1507.2(c). This repeats language from the 1978 rule and is good, as it should keep agencies focused on all possible impacts, not just ones that can be expressed in monetary or other quantifiable terms.
AGENCY NEPA PROCEDURES. Under 1507.3(b), agencies must revise their NEPA procedures no later than 12 months from the effective date of the new rule (July 1, 2024) to ensure compliance with the rule. (11)
Agencies must allow public comment and CEQ review on draft procedures. CEQ review shall be completed within 30 days. Once in effect, “agencies shall publish their NEPA procedures and ensure that they are readily available to the public. 1507.3(c)(1) and (2). The issuance of new or updated procedures is not subject to NEPA. 1507.3(b)(3).
Section 1507.3(c) has a long list of topics that must be addressed in agency NEPA procedures, including: how the agency will identify extraordinary circumstances; have a process for determining when EAs and EISs need to be supplemented; and explain where interested persons can get information on status reports for EAs and EISs and any part of the NEPA process.
Agencies must have procedures for applicant-directed preparation of environmental documents. 1507.3(c)(12). This includes ensuring that:
Policies or designated staff are available to advise potential applicants of studies or other information foreseeably required for later Federal action.
1501.2(b)(4)(i).
For these types of analyses, the agency must approve the purpose and need and reasonable alternatives, and must independently evaluate the applicant-prepared document. Agencies must not allow applicant-contractors to prepare decision documents (FONSIs or RODs). 1507.3(c)(12)(i) –(iii). See also 1506.5(b)(2) and (c)(2).
Contractors preparing NEPA documents must sign a disclosure statement indicating that “the contractor has no financial or other interest in the outcome of the action”. 1506.5(c)(4). This is the same language as in the 1978 rule. It was removed in the 2020 rule.
See more under Categorical Exclusions above.
Agencies “shall provide for agency websites or other information technology tools” with relevant information about how the agency handles NEPA, including its NEPA procedures. The website or other means of publication must have “a list of environmental assessments and environmental impact statements that are in development and complete.” 1507.4(a). However, agencies should (not must) post “environmental documents”. 1507.4(a)(2). Other “should” items include a database searchable by geographic information, document status and type, and project type. 1507.4(a)(5).
ENVIRONMENTAL JUSTICE. The new rule provides a definition for “communities with environmental concerns”. It mentions some tools that can be used to identify such communities. Though not required, agencies “may develop procedures for the identification of such communities in their agency NEPA procedures”. 1508.1(f).
Environmental justice is a criteria for determining if a proposed action may be significant. 1503.1(d)(2)(vii). “[D]isproportionate and adverse effects on communities with environmental justice” is specifically included in the definition of “effects or impacts”. 1508.1(i).
As noted above under Environmental Impact Statements, EISs must provide an analysis of “[w]here applicable, disproportionate and adverse human health and environmental effects on communities with environmental justice concerns.” 1502.16(a)(13); see also 1508.1(i)(4). This is not explicitly required for EAs.
Environmental justice is also listed as a possible “extraordinary circumstance” (1508.1(o)), though that would of course depend on the specific project or activity being analyzed.
EFFECTIVE DATE. The rule is effective for any NEPA processes begun on or after July 1, 2024. 1506.12. Agencies may use the new rule for ongoing activities and document preparation which began previously. Ibid.
CONGRESSIONAL REVIEW ACT APPLICABILITY. Under the Congressional Review Act (CRA), major federal rules are subject to review by Congress. That body can pass a simple resolution in each house disapproving a rule, which is then invalidated if signed by the President.
Major rule is defined as follows:
any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in—
(A) an annual effect on the economy of $100,000,000 or more;
(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.PL 14-121, section 804 (2).
The preamble to the CEQ rule does not specifically analyze applicability of the CRA, but states, under its analysis of applicability of the Unfunded Mandates Reform Act:
This final rule applies to Federal agencies and will not result in expenditures of $100 million or more for Tribal, State, and local governments, in the aggregate, or the private sector in any 1 year.
Preamble at 35553. Thus it would appear that the new CEQ rule is not subject to CRA. This it cannot be rescinded by act of Congress.
SUMMARY AND CONCLUSION. Overall, the rule is almost as good as we could have expected, given the FRA. CEQ, as promised, restored many key parts of the 1978 rule, as discussed above. The new rule specifically requires disclosure of impacts concerning environmental justice and climate change. There is expanded language on the need for professional and scientific integrity and using reliable data.
It is disappointing to see the rules for EAs being weaker than they should be. The provisions for agencies to develop and use new CEs is also a concern, as such use is already bad.
As projects begin after July 1, the effective date of the new rule, please become familiar with the new rule and apply it in your comments, objections, protests, and appeals. There is good language in the new rule that will help force agencies to disclose potential impacts from proposed projects and activities.
Feedback on this review and on the rule itself is strongly encouraged.
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Footnotes:
1: The reasoning for not restoring this part of the definition is as follows: “CEQ declines to use the term ‘highly controversial’. While some may be familiar with the terminology, it could mistakenly give the impression that it refers to public controversy.” Preamble at 35468. That could easily be fixed by adding the word “scientifically” to the factor. And CEQ contradicts itself later in the Preamble, as is explained below.
2: Section 1501.6(b)(2)(ii) requires a proposed finding of no significant impact (FONSI) to be available for 30 days prior to an agency’s determination of whether to prepare an EIS when “[t]he nature of a proposed action is one without precedent”.
3: For example, the House version of the latest Farm Bill would establish CE categories up to 10,000 acres.
4: But note the definition of scope: “Scope consists of the range and breadth of actions, alternatives, and effects to be considered in an environmental impact statement or environmental assessment.” 1508.1(kk).
5: The definition of “page” helps us here: “Page means 500 words and does not include citations, explanatory maps, diagrams, graphs, tables, and other means of graphically displaying quantitative or geospatial information.” 1508.1(bb); emphasis added.
6: Regardless of how this is interpreted, the Forest Service’s Planning Rule requires an EIS be prepared for new and revised forest plans. 36 CFR 219.7(c)(1).
7: The “page” definition, cited above for EAs, applies to EISs also.
8: “Reasonable alternatives means a reasonable range of alternatives that are technically and economically feasible, and meet the purpose and need for the proposed action.” 1508.1(hh).
9: Climate change is explicitly included in the definition of “effect or impacts, both how a proposed action might affect climate change and how climate change might affect a proposed action. 1508.1(i).
10: Section 107(g)(3) of NEPA added by the FRA even allows project sponsors to sue an agency if a deadline is not met. However, this fdoes not appear in the CEQ rule.
11: Any new agencies must develop NEPA procedures no later than nine months after the agency is established.
