Final Proposed CEQ NEPA Regulations

Back to the Future: The Final Proposed CEQ NEPA Regulations – 40 CFR Parts 1502, 1507, and 1508

The much-anticipated Council on Environmental Quality (CEQ) Implementing Regulations Phase 1 revisions have been posted to the Federal Register. Not surprisingly, this is looking like déjà vu all over again. These Phase 1 revisions, rather than being a complete return to the original CEQ regulations, are a selective revision of key changes enacted by the Trump administration in 2020  that, as CEQ states,  “…pose significant near-term interpretation or implementation challenges for Federal agencies.” In general, these revisions return substantial deference to the federal agency in terms of defining project needs, alternatives, and National Environmental Policy Act (NEPA) process requirements. A quick summary of these revisions and what they mean to real-world NEPA is provided below:

• Purpose and need – Section 1502.13 has been revised to remove the requirement that a federal agency base purpose and need on the goals of the applicant. In short, CEQ asserts, “… the goals of the applicant are an important, but not determinative, factor in developing a purpose and need statement for a variety of reasons, including helping to identify reasonable alternatives that are technically and economically feasible.” Further, the CEQ states that this allows for times “… when an agency identifies a reasonable range of alternatives that includes alternatives—other than the no action alternative—that are beyond the goals of the applicant or outside the agency’s jurisdiction because the agency concludes that they are useful for the agency decision maker and the public to make an informed decision.”
  • Take-home message: We are back to the pre-2020 definition of what constitutes a reasonable range of alternatives to meet purpose and need, including the option for consideration of alternatives outside the agencies’ jurisdiction.

• Agency NEPA procedures – Section 1507.3 has been revised to remove language that constrains agencies from going beyond the CEQ NEPA requirements. This effectively sets the CEQ NEPA regulations as the minimum requirement and allows agencies to go above and beyond this, in contrast to the 2020 NEPA regulations, which established the CEQ regulations as the maximum requirement. This revision, CEQ states, “..advances NEPA’s goals by giving agencies the flexibility to follow their existing procedures or develop new or revised NEPA procedures that best meet the agencies’ statutory missions and enable integration of environmental considerations in their decision making in a flexible manner.”
  • Take-home message: Keep an eye out for revised agency procedures and be aware that they may include more specific or stringent requirements for key process steps, particularly for Environmental Assessments. These could include more specific requirements for public involvement, consideration of alternatives, requirements for mitigation, etc.

• Definition of effects – Section 1508.1(g) was amended to define impacts as “direct effects,” “indirect effects,” and “cumulative effects,” and to eliminate the clause “have a reasonably close causal relationship.” In doing so, CEQ directs, “..agencies should continue to engage in the context-specific inquiry they have undertaken for more than 40 years to identify reasonably foreseeable effects of a proposed action and its alternatives” and “Agencies should treat cumulative effects under the final rule in the same fashion as they treated cumulative impacts under the 1978 regulations.”
  • Take-home message: Cumulative is back, and with these definitions, expect to see a corresponding push for federal agencies to fully analyze and disclose contributions of projects on cumulative climate change impacts and associated consequences to environmental justice communities.

What’s Next

• Phase 1 CEQ rule – This becomes effective on May 20, 2022
• Phase 2 CEQ rulemaking decisions – These are pending and will include a more comprehensive revision of CEQ regulations
• Agency-specific NEPA procedures – These are pending for 2023

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