[Federal Register Volume 86, Number 192 (Thursday, October 7, 2021)]
[Proposed Rules]
[Pages 55757-55769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21867]


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COUNCIL ON ENVIRONMENTAL QUALITY

40 CFR Parts 1502, 1507, and 1508

[CEQ-2021-0002]
RIN 0331-AA05


National Environmental Policy Act Implementing Regulations 
Revisions

AGENCY: Council on Environmental Quality.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Council on Environmental Quality (CEQ) is proposing to 
modify certain aspects of its regulations for implementing the 
procedural provisions of the National Environmental Policy Act (NEPA) 
to generally restore regulatory provisions that were in effect for 
decades before being modified in 2020. CEQ proposes these changes in 
order to better align the provisions with CEQ's extensive experience 
implementing NEPA, in particular its perspective on how NEPA can best 
inform agency decision making, as well as 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. The proposed rule would restore provisions addressing the 
purpose and need of a proposed action, agency NEPA procedures for 
implementing CEQ's NEPA regulations, and the definition of ``effects.'' 
CEQ invites comments on the proposed revisions.

DATES: 
    Comments: CEQ must receive comments by November 22, 2021.
    Public meeting: CEQ will conduct two online public meetings for the 
proposed rule on Tuesday, October 19, 2021, from 1 to 4 p.m. EDT, and 
Thursday, October 21, 2021 from 5 to 8 p.m. EDT. To register for the 
meetings, please visit CEQ's website at www.nepa.gov.

ADDRESSES: You may submit comments, identified by docket number CEQ-
2021-0002, by any of the following methods:
    [ssquf] Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    [ssquf] Fax: 202-456-6546.
    [ssquf] 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-
2021-0002, for this rulemaking. All comments received will be posted 
without change to https://www.regulations.gov, including any personal 
information provided. Do not submit electronically any information you 
consider to be 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, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On January 1, 1970, President Nixon signed into law the National 
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. 
Congress enacted NEPA by a unanimous vote in the Senate and a nearly 
unanimous vote in the House \1\ to declare a national policy to promote 
environmental protection for present and future generations. NEPA was 
established to ``encourage productive and enjoyable harmony'' between 
humans and the environment; to promote efforts that will prevent or 
eliminate damage to the environment and biosphere and stimulate the 
health and welfare of people; and to enrich the understanding of the 
ecological systems and natural resources important to the Nation. 42 
U.S.C. 4321.
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    \1\ See Linda Luther, Cong. Rsch. Serv., RL33152, The National 
Environmental Policy Act: Background and Implementation (2008), 
https://crsreports.congress.gov/product/details?prodcode=RL33152.
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    To achieve these objectives, NEPA makes 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

[[Page 55758]]

generations of Americans. 42 U.S.C. 4331. NEPA directs Federal agencies 
to prepare ``detailed statements,'' referred to as environmental impact 
statements (EISs), for ``major Federal actions significantly affecting 
the quality of the human environment.'' 42 U.S.C. 4332(2)(C). NEPA 
established the Council on Environmental Quality (CEQ) in the Executive 
Office of the President, which advises the President on environmental 
policy matters and oversees Federal agencies' implementation of NEPA. 
42 U.S.C. 4342. In many respects, NEPA was a statute ahead of its time, 
and it remains relevant and vital today, from its statements that 
decisions be grounded in science to its recognition that sustainability 
and a livable environment are fundamental to social and economic well-
being. See, e.g., 42 U.S.C. 4331, 4332(A).
    In 1970, President Nixon issued Executive Order (E.O.) 11514, 
Protection and Enhancement of Environmental Quality, which directed CEQ 
to issue guidelines for implementation of section 102(2)(C) of NEPA.\2\ 
In response, CEQ issued interim guidelines in April 1970, and revised 
the guidelines in 1971 and 1973.\3\ 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 to 
govern implementation of NEPA and requiring that Federal agencies 
comply with those regulations.\4\ CEQ promulgated implementing 
procedures in 1978 at 40 CFR parts 1500 through 1508.\5\ The 
regulations, issued 8 years after NEPA's enactment, reflect CEQ's 
interpretation of and expertise in NEPA, initial interpretations of the 
courts, and Federal agency experience implementing NEPA. Consistent 
with the requirement in 40 CFR 1507.3, Federal agencies, in turn, issue 
and update their own implementing procedures to supplement CEQ's 
procedures and integrate the NEPA process into the agencies' specific 
programs and processes. Agencies consult with CEQ in the development of 
these procedures to ensure that their agency-specific procedures are 
consistent with CEQ's regulations. CEQ made technical amendments to the 
1978 implementing regulations in 1979 \6\ and amended one provision in 
1986,\7\ but it left the regulations largely unchanged for over 40 
years (1978 NEPA Regulations). As a result, CEQ and Federal agencies 
have extensive experience in implementing NEPA and the 1978 
regulations, and a large body of agency practice and case law has 
developed based on the CEQ NEPA regulations that remained in 
substantially the same form from 1978 to 2020. The fundamental 
principles of informed and science-based decision making, transparency, 
and public engagement are reflected in both the NEPA statute and CEQ's 
1978 NEPA Regulations, and it is those core principles that CEQ seeks 
to advance in this proposed rule.
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    \2\ 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
    \3\ See 35 FR 7390 (May 12, 1970) (interim guidelines); 36 FR 
7724 (Apr. 23, 1971) (final guidelines); 38 FR 10856 (May 2, 1973) 
(proposed revisions to the guidelines); 38 FR 20550 (Aug. 1, 1973) 
(revised guidelines).
    \4\ 42 FR 26967 (May 25, 1977).
    \5\ 43 FR 55978 (Nov. 23, 1978).
    \6\ 44 FR 873 (Jan. 3, 1979).
    \7\ 51 FR 15618 (Apr. 25, 1986) (amending 40 CFR 1502.22).
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    On August 15, 2017, President Trump issued E.O. 13807, Establishing 
Discipline and Accountability in the Environmental Review and 
Permitting Process for Infrastructure Projects,\8\ which, in part, 
directed CEQ to establish and lead an interagency working group to 
identify and propose changes to the NEPA regulations.\9\ In response, 
on January 10, 2020, CEQ published a notice of proposed rulemaking 
(NPRM) proposing broad revisions to the 1978 NEPA Regulations.\10\ A 
wide range of stakeholders submitted more than 1.1 million comments on 
the proposed rule,\11\ including state and local governments, Tribes, 
environmental advocacy organizations, professional and industry 
associations, and other advocacy or non-profit organizations. 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, made 
wholesale revisions to the regulations and took effect on September 14, 
2020 (2020 NEPA Regulations or 2020 Rule).\12\
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    \8\ 82 FR 40463 (Aug. 24, 2017).
    \9\ Id., sec. 5(e)(iii).
    \10\ 85 FR 1684 (Jan. 10, 2020).
    \11\ See Docket No. CEQ-2019-0003, https://www.regulations.gov/document/CEQ-2019-0003-0001.
    \12\ 85 FR 43304 (July 16, 2020).
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    In the months that followed the issuance of the 2020 NEPA 
Regulations, five lawsuits were filed challenging the 2020 Rule.\13\ 
These cases challenge the 2020 NEPA Regulations 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 and joint motions, the 
district courts have 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,\14\ and is 
currently on appeal to the U.S. Court of Appeals for the Fourth 
Circuit.
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    \13\ Wild Va. v. Council on Env't Quality, No. 3:20cv45 (W.D. 
Va. 2020); Envtl. 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 Service, No. 2:21cv00003 (W.D. Va. 2020), 
plaintiffs challenge the U.S. Forest Service's NEPA implementing 
procedures, which established new categorical exclusions, and, 
relatedly, the 2020 Rule's provisions on categorical exclusions.
    \14\ Wild Va. v. Council on Env't Quality, No. 3:20cv45, 2021 WL 
2521561 (W.D. Va. June 21, 2021).
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    On January 20, 2021, President Biden issued E.O. 13990, Protecting 
Public Health and the Environment and Restoring Science to Tackle the 
Climate Crisis.\15\ Section 1 of E.O. 13990 establishes 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 greenhouse gas emissions; 
bolster resilience to the impacts of climate change; restore and expand 
our national treasures and monuments; and prioritize both environmental 
justice and the creation of well-paying union jobs necessary to deliver 
these goals.\16\
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    \15\ 86 FR 7037 (Jan. 25, 2021).
    \16\ Id., sec. 1.
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    Section 2 of the E.O. calls for Federal agencies to review existing 
regulations issued between January 20, 2017, and January 20, 2021, for 
consistency with the policy articulated in the E.O. and to take 
appropriate action. Section 7(b) revokes a number of E.O.s, including 
E.O. 13807, and section 7(f) directs agencies to promptly take steps to 
rescind any rules or regulations implementing or enforcing any of the 
revoked E.O.s. An accompanying White House fact sheet, published on 
January

[[Page 55759]]

20, 2021, specifically directs CEQ to review the 2020 NEPA Regulations 
for consistency with E.O. 13990's objectives.\17\
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    \17\ 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/.
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    On January 27, 2021, the President signed E.O. 14008, Tackling the 
Climate Crisis at Home and Abroad, which establishes a government-wide 
approach to the climate crisis by reducing greenhouse gas emissions and 
an Administration policy to increase climate resilience, transition to 
a clean-energy economy, address environmental justice and invest in 
disadvantaged communities, and spur well-paying union jobs and economic 
growth.\18\ E.O. 14008 also requires the Chair of CEQ and the Director 
of the Office of Management and Budget (OMB) to ensure that Federal 
infrastructure investments reduce climate pollution and that Federal 
permitting decisions consider the effects of greenhouse gas emissions 
and climate change.\19\
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    \18\ 86 FR 7619 (Feb. 1, 2021).
    \19\ Id., sec. 213(a).
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II. CEQ's Approach to Revising the 2020 NEPA Regulations

    Consistent with E.O. 13990 and E.O. 14008, CEQ is engaged in a 
comprehensive review of the 2020 NEPA Regulations to ensure that they 
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, 
respects Tribal sovereignty, protects our Nation's resources, and 
promotes better environmental and community outcomes. CEQ proposes 
regulatory changes in this NPRM to enhance clarity on NEPA 
implementation, to better effectuate NEPA's statutory requirements and 
purposes, to ensure that Federal decisions are guided by science, to 
better protect and enhance the quality of the human environment, and to 
provide full and fair processes that inform the public about the 
environmental effects of government actions and enable public 
participation.
    CEQ's review of the 2020 NEPA Regulations and the proposed 
regulatory amendments are guided by CEQ's and Federal agencies' 
extensive experience implementing NEPA for the last 50 years. As part 
of its oversight role, CEQ reviews every agency's proposed new or 
updated NEPA implementing procedures. As part of this iterative 
process, CEQ engages with agencies to understand their specific 
authorities and programs to ensure consideration of environmental 
impacts is integrated into their decision-making processes. 
Additionally, where necessary or appropriate, CEQ engages with agencies 
on NEPA reviews for specific projects or project types. For example, 
CEQ has convened interagency working groups to ensure efficient and 
effective environmental reviews for transportation and broadband 
projects. CEQ also has extensive experience providing written guidance 
to Federal agencies on a wide range of NEPA-related issues, including 
environmental justice, emergency response activities, climate change, 
and more.\20\ And, CEQ meets regularly with external stakeholders to 
understand their perspectives on the NEPA process. Finally, CEQ 
coordinates with other Federal agencies and components of the White 
House on a wide array of environmental issues that also arise in the 
NEPA context, such as endangered species consultation or impacts to 
Federal lands and waters from federally permitted activities.
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    \20\ See https://www.energy.gov/nepa/ceq-guidance-documents for 
a list of current CEQ guidance documents.
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    It is CEQ's view that the 2020 NEPA Regulations may have the effect 
of limiting the scope of NEPA analysis, with negative repercussions for 
environmental protection and environmental quality, including in 
critical areas such as climate change and environmental justice. 
Portions of the 2020 NEPA Regulations also may not reflect NEPA's 
statutory purposes to ``encourage productive and enjoyable harmony'' 
between humans and the environment, promote efforts that will prevent 
or eliminate damage to the environment and biosphere, and enhance 
public health and welfare. See 42 U.S.C. 4321. Some changes introduced 
by the 2020 NEPA Regulations also may not support science-based 
decision making or be compatible with the Administration's policies to 
improve public health, protect the environment, prioritize 
environmental justice, provide access to clean air and water, and 
reduce greenhouse gas emissions that contribute to climate change.\21\
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    \21\ See E.O. 13990, supra note 15, and E.O. 14008, supra note 
18.
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    To address these concerns, CEQ is engaging in a series of 
rulemakings to propose revisions to the 2020 NEPA Regulations. As a 
preliminary step, 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 their existing NEPA supplemental procedures by September 14, 
2021, in order to make their procedures consistent with the 2020 NEPA 
Regulations.\22\ CEQ extended the date by two years to avoid having 
agencies propose changes to their implementing procedures on a tight 
deadline to conform to a rule that is undergoing extensive review and 
will likely change in the near future.
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    \22\ 86 FR 34154 (June 29, 2021).
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    CEQ intends to reconsider and revise the 2020 NEPA Regulations 
using a phased approach. This NPRM initiates a ``Phase 1'' rulemaking 
to focus on a discrete set of provisions. In identifying what 
provisions to address in Phase 1, CEQ focused on the provisions that 
(1) pose significant near-term interpretation or implementation 
challenges for Federal agencies and would have the most impact to 
agencies' NEPA processes during the interim period before a ``Phase 2'' 
rulemaking is complete; (2) make sense to revert to the 1978 regulatory 
approach for the reasons discussed in Part III of this preamble; and 
(3) CEQ is generally unlikely to propose to further revise in a Phase 2 
rulemaking. Further, because CEQ recently received comments on these 
exact provisions through the rulemaking process for the 2020 NEPA 
Regulations, CEQ has the benefit of voluminous public comments on these 
issues, which CEQ considered in the development of this proposed rule. 
In Phase 2, CEQ intends to issue a second NPRM to more broadly revisit 
the 2020 NEPA Regulations and propose further revisions to ensure that 
the NEPA process provides for efficient and effective environmental 
reviews that are consistent with the statute's text and purpose; 
provides regulatory certainty to Federal agencies; promotes better 
decision making consistent with NEPA's statutory requirements; and 
meets environmental, climate change, and environmental justice 
objectives.

III. Summary of Proposed Rule

    As discussed in this section, CEQ proposes three revisions to the 
2020 NEPA Regulations in this Phase 1 rulemaking: (1) To eliminate 
language in the description of purpose and need for a proposed action 
when it is an agency's statutory duty to review applications for 
authorization (40 CFR 1502.13) and make a conforming edit to the 
definition of ``reasonable alternatives'' (40 CFR 1508.1(z)); (2) to 
remove limitations on agency NEPA procedures for implementing CEQ's 
NEPA Regulations (40 CFR 1507.3); and (3) to return to the definitions 
of ``effects'' in the prior,

[[Page 55760]]

longstanding 1978 NEPA Regulations (40 CFR 1508.1(g)).
    CEQ proposes to amend these provisions by generally reverting to 
the language from the 1978 NEPA Regulations that was in effect for more 
than 40 years, subject to minor revisions for clarity. In proposing to 
revert to language in the 1978 Regulations, this NPRM addresses issues 
similar or identical to those the public and Federal agencies recently 
had the opportunity to consider and comment on during the rulemaking 
for the 2020 NEPA Regulations, which will facilitate an expeditious 
Phase 1 rulemaking. For each provision described in this section, CEQ 
provides a high-level summary of some of the significant issues raised 
in these public comments, which CEQ considered in the development of 
this proposed rule.

A. Purpose and Need (Sec.  1502.13)

    The purpose and need section of an EIS sets forth the rationale for 
the agency's proposed action. Development of the purpose and need is a 
vital early step in the NEPA process that is foundational to other 
elements of a NEPA review. For example, the purpose and need statement 
sets the parameters for the range of reasonable alternatives an agency 
considers and informs the scope of effects that an agency must analyze 
in an EIS. The 1978 NEPA Regulations required that each EIS briefly 
state the underlying purpose and need to which the agency is responding 
in proposing the alternatives, including the proposed action. The 2020 
NEPA Regulations modified this provision by adding language that 
requires agencies to base the purpose and need on the goals of an 
applicant and the agency's authority when the agency's statutory duty 
is to review an application for authorization. The 2020 NEPA 
Regulations also made a conforming addition to the definition of 
``reasonable alternatives'' to carry over the new language on purpose 
and need. Here, CEQ proposes in Sec.  1502.13 to revert to the language 
of the 1978 NEPA Regulations for purpose and need and conform the 
definition of ``reasonable alternatives'' in Sec.  1508.1(z) to this 
change.
    CEQ proposes this change because the language added by the 2020 
NEPA Regulations requires an agency to always base the purpose and need 
on the goals of an applicant and the agency's statutory authority when 
an agency is reviewing an application for authorization. This language 
could be construed to require agencies to prioritize the applicant's 
goals over other relevant factors, including the public interest. CEQ 
does not consider this approach to reflect the best reading of the NEPA 
statute or lay the appropriate groundwork for environmentally sound 
decision making. Agencies should have discretion to base the purpose 
and need for their actions on a variety of factors, which include the 
goals of the applicant, but not to the exclusion of other factors. For 
example, agencies may consider regulatory requirements, desired 
conditions on the landscape or other environmental outcomes, and local 
economic needs, as well as an applicant's goals. Always tailoring the 
purpose and need to an applicant's goals when considering a request for 
an authorization could prevent an agency from considering alternatives 
that better meet the policies and responsibilities set forth in NEPA 
merely because they do not meet an applicant's stated goals. 
Additionally, an applicant's goals themselves could be potentially 
confusing or unduly narrow or restrictive. Restoring the 1978 language 
would eliminate this confusing language and reaffirm agency discretion 
to develop and rely on statements of purpose and need that are 
consistent with the agency's decision-making responsibilities while 
considering multiple relevant factors, including the public interest 
and the goals of an applicant. This restoration would confirm that 
agencies should consider a range of alternatives that are technically 
and economically feasible and meet the purpose and need for the 
proposed action but that are not unreasonably constrained by an 
applicant's stated goals.
    In adding this language, the preamble to the 2020 Rule explained 
that CEQ intended to clarify that when an agency is responsible for 
reviewing applications for authorizations, the agency must base the 
purpose and need on the applicant's goals and the agency's statutory 
authority, citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d 
190, 196 (D.C. Cir. 1991). However, this case did not require the 
agency to base the purpose and need on the applicant's goals; rather, 
the court held that the agency's consideration of the applicant's goals 
to develop the purpose and need statement was not arbitrary and 
capricious. However, the court did not require that the applicant's 
goals be the sole (or even primary) factor in the formulation of the 
purpose and need for the action. See id. at 196-99.
    CEQ proposes to remove the reference to the agency's statutory 
authority because it is unnecessary and confusing. It is unnecessary 
because agencies already had a long history of developing purpose and 
need statements under the 1978 NEPA Regulations guided by their 
statutory authority and the scope of the agency decision under 
consideration. The reference is confusing because it implies that an 
agency's authority is only relevant when an agency proposes to grant an 
authorization, and agencies must also appropriately consider the scope 
of their authority when evaluating other agency actions, including 
those that do not involve specific authorizations. Therefore, CEQ 
proposes to eliminate the reference to an agency's authority because 
purpose and need statements have always been informed by the scope of 
the agency's statutory decision-making authority irrespective of 
whether the action is an application for authorization. A reference to 
an agency's statutory authority in this one context therefore seems 
unnecessary.
    To promote informed decision making, transparency, and public 
engagement, a properly drawn purpose and need statement should lead to 
consideration of the reasonable alternatives to the proposed action, 
consistent with NEPA's requirements. See 42 U.S.C. 4332(2)(C). While a 
purpose and need statement that is too narrow is inconsistent with 
NEPA's requirement to consider alternatives to the proposed action, so 
too is a boundless analysis of alternatives. Rather, agencies are 
guided by a rule of reason in identifying the reasonable alternatives 
that are technically and economically feasible and meet the purpose and 
need of a proposed action. See, e.g., HonoluluTraffic.com v. Fed. 
Transit Admin., 742 F.3d 1222, 1230 (9th Cir. 2014).
    For example, a private applicant seeking a right-of-way on Federal 
land may want to site the right-of-way at a specific location and may, 
correspondingly, frame the applicant's goals as a right-of-way with a 
particular location or route. However, the agency with jurisdiction 
over the proposed action may want to consider a range of reasonable 
locations for the right-of-way that would, for example, avoid 
environmental impacts or reduce conflicts with other programs or plans.
    Inherent in the NEPA process is the consideration of the public 
interest when developing a purpose and need statement, including 
analyzing proposed actions and alternatives. As the U.S. Court of 
Appeals for the Seventh Circuit explained in Simmons v. U.S. Army Corps 
of Engineers, it is contrary to NEPA for agencies to ``contrive a 
purpose so slender as to define competing `reasonable alternatives' out 
of consideration (and even out of existence).'' 120 F.3d 664,

[[Page 55761]]

666 (7th Cir. 1997) (citing 42 U.S.C. 4332(2)(E)). The court explained 
that constricting the definition of the project's purpose could exclude 
truly reasonable alternatives, making an EIS incompatible with NEPA's 
requirements. Id.; see also, e.g., Nat'l Parks & Conservation Ass'n v. 
Bureau of Land Mgmt., 606 F.3d 1058, 1070 (9th Cir. 2010) (``Agencies 
enjoy `considerable discretion' to define the purpose and need of a 
project. However, `an agency cannot define its objectives in 
unreasonably narrow terms.''' (internal citations omitted)).
    During the rulemaking process for the 2020 NEPA Regulations, 
numerous public comments addressed the purpose and need provision. Some 
commenters supported limiting the purpose and need to the goals of the 
applicant in order to narrow the number of alternatives agencies must 
consider and shorten the timeframe for the environmental review. Other 
commenters expressed the view that this provision would result in 
purpose and need statements and environmental reviews that give undue 
deference to applicants. Some commenters also stated that the proposed 
change would unduly elevate the goals of applicants over the needs of 
the public and Federal agencies' purview to consider the public 
interest. In reconsidering the approach taken in the 2020 Rule, CEQ 
reviewed these comments. As discussed in this section, CEQ considers 
the proposed reversion to the 1978 language on purpose and need to 
better reflect NEPA's objectives. Upon further consideration, CEQ does 
not consider that the language added by the 2020 Rule would necessarily 
lead to more efficient reviews and finds a lack of evidence to support 
that claim. CEQ requests comment on this proposed change and the 
potential effects of this change on the environmental review process, 
including timeframes for environmental review.
    CEQ also proposes to make a conforming edit to the definition of 
``reasonable alternatives. The 2020 Rule defines ``reasonable 
alternatives'' to mean ``a reasonable range of alternatives that are 
technically and economically feasible, meet the purpose and need for 
the proposed action, and, where applicable, meet the goals of the 
applicant.'' 40 CFR 1508.1(z) (emphasis added). CEQ's proposed change 
would be consistent with the proposed change to purpose and need, by 
deleting the reference in ``reasonable alternatives'' to the goals of 
the applicant for the same reasons discussed above regarding the 
proposed change to the purpose and need section, Sec.  1502.13.

B. Agency NEPA Procedures (Sec.  1507.3)

    CEQ proposes to revise Sec.  1507.3(a) and (b) to clarify that 
while agency NEPA procedures need to be consistent with the CEQ 
regulations, agencies have the discretion and flexibility to develop 
procedures beyond the CEQ regulatory requirements, enabling agencies to 
address their specific programs and the contexts in which they operate. 
Specifically, the proposed rule would remove language from Sec.  
1507.3(a) stating that where existing agency NEPA procedures are 
``inconsistent'' with the CEQ regulations, the CEQ regulations apply 
``unless there is a clear and fundamental conflict with the 
requirements of another statute.'' The proposed rule also would remove 
from Sec.  1507.3(b) the language requiring agencies ``to eliminate any 
inconsistencies'' with the CEQ regulations and the prohibition on 
agencies imposing additional procedures or requirements beyond the CEQ 
regulations unless those additional procedures promote agency 
efficiency or are required by law. Collectively, these ``ceiling 
provisions'' make the CEQ regulations a ceiling for agency NEPA 
procedures, which departed from CEQ's and Federal agencies' prior 
understanding and practice that CEQ's NEPA regulations provide a floor 
for environmental review procedures.
    As noted in section II of this preamble, CEQ amended paragraph (b) 
in June 2021 to provide agencies until September 14, 2023, to propose 
updates to their agency procedures. This NPRM does not propose to 
change that date. In proposing these revisions, CEQ is affirming that 
agencies have the authority and discretion to develop and implement 
NEPA procedures beyond those specified in the CEQ regulations to 
address the unique contexts in which they operate, and that CEQ will 
continue to ensure that such additional procedures are consistent with 
CEQ's regulations through its consistency review process set forth in 
40 CFR 1507.3(b)(2).
    Prior to the 2020 NEPA Regulations, Federal agencies could develop 
NEPA procedures of their own to augment the CEQ regulations, so long as 
those procedures met or exceeded the degree of environmental review 
required by the CEQ regulations. CEQ's proposal better meets NEPA's 
statutory requirements and purpose to provide flexibility to agencies 
in carrying out their NEPA requirements, including by allowing agencies 
to adopt agency-specific NEPA procedures that align with their unique 
missions or circumstances. Agencies should be able to tailor their 
procedures to meet their unique statutory mandates and include 
additional procedures or requirements beyond those outlined in CEQ's 
NEPA regulations, especially if doing so will promote better decisions, 
improve environmental or community outcomes, or spur innovation that 
advances NEPA's policies.
    For example, agency procedures could include more specific 
requirements for the development of environmental assessments to 
facilitate the decision-making process, such as requiring multiple 
alternatives or documentation of alternatives considered but dismissed. 
Procedures also could require public hearings or provide for more 
specific consideration or evaluation of certain issues such as air and 
water quality impacts, environmental justice considerations, or habitat 
effects. For example, the National Oceanic and Atmospheric 
Administration (NOAA), which among other things, is responsible for the 
stewardship of the Nation's ocean resources and their habitat, might 
adopt agency-specific procedures on the analysis of impacts to species 
or habitats protected by the Endangered Species Act, the Marine Mammal 
Protection Act, or the Magnuson-Stevens Fishery Conservation and 
Management Act, as well as other vulnerable marine and coastal 
ecosystems. CEQ has heard from Federal agencies that the ceiling 
provisions have created confusion as to whether agencies can continue 
to carry out their agency-specific procedures or adopt new procedures 
to implement NEPA for their programs and authorities.
    CEQ reviews any proposed changes to agency NEPA procedures before 
their adoption to ensure the procedures are consistent with NEPA and 
the CEQ regulations. See 40 CFR 1507.3. That review process provides 
the opportunity to discuss the reasons behind any new or additional 
procedures or requirements proposed by agencies. This also allows CEQ 
to promote consistency across the Federal Government without limiting 
agencies' flexibility to do more than the CEQ regulations describe or 
otherwise inhibiting innovation.
    Removing these ceiling provisions also improves alignment of the 
NEPA Regulations with NEPA's statutory text, which directs agencies to 
pursue the statute's goals ``to the fullest extent possible.'' 42 
U.S.C. 4332. The legislative history of NEPA indicates that the intent 
behind this statement was to ensure that all Federal agencies comply 
with NEPA as well as their statutory authorities and that ``no agency 
shall utilize an excessively

[[Page 55762]]

narrow construction of its existing statutory authorizations to avoid 
compliance.'' \23\
---------------------------------------------------------------------------

    \23\ H. Rep. No. 91-765, at 9-10 (1969).
---------------------------------------------------------------------------

    Additionally, removing these sentences would allow agencies to 
fully pursue NEPA's aims by allowing them to establish procedures 
specific to their missions and authorities that may provide for 
additional environmental review and public participation. See 42 U.S.C. 
4332. CEQ would continue to perform its longstanding role of reviewing 
any proposed agency-specific NEPA procedures to ensure that they are 
consistent with, but not necessarily identical to, CEQ's regulations. 
The proposed change would also help Federal agencies ensure that their 
NEPA procedures, and the NEPA documents and processes that follow those 
procedures, meet the goal of NEPA to provide for the protection and 
enhancement of the environment and human health.
    Since all agencies are charged with administering NEPA--not only 
CEQ--agencies should be allowed to pursue the environmental aims of the 
statute, including by adopting and carrying out procedures that require 
additional or more specific environmental analysis than called for by 
the CEQ regulations. NEPA also expressly instructs agencies to develop 
methods and procedures for the development of EISs, indicating that 
agencies are intended to take responsibility for their own procedures, 
even while consulting with CEQ. See 42 U.S.C. 4332(2)(B). Eliminating 
the 2020 NEPA Regulations' ceiling provisions would allow agencies to 
carry out their NEPA obligations to the ``fullest extent possible.'' 
See 42 U.S.C. 4332.
    The public extensively commented on the ceiling provisions during 
the rulemaking for the 2020 NEPA Regulations. Many commenters opposed 
the addition of these provisions, expressing the view that it is 
important for agencies to have flexibility to meet NEPA's statutory 
requirements and establish the procedures and requirements necessary to 
implement NEPA. Commenters stated that precluding an agency from 
applying its expertise would arbitrarily limit the role of agencies 
responsible for implementing NEPA. Some commenters found that the 2020 
NEPA Regulations did not adequately justify the addition of these 
provisions or clearly articulate what problem the change was trying to 
solve. A few commenters also noted that the proposed changes could 
interfere with state and Federal collaboration or coordination to the 
extent they would prevent Federal agencies from adopting NEPA 
procedures that integrate with state review processes that have more 
stringent requirements and procedures than those set out in the 
proposed rule. The commenters noted that impairing Federal agencies' 
coordination with states would create greater complexity and 
uncertainty for applicants and potentially additional delays and 
paperwork. The few comments in support of the change expressed general 
support or stated that including ceiling provisions would reduce costs 
and delays--a rationale that appears in the NPRM for the 2020 Rule--but 
did not provide an explanation or basis for that statement.
    In developing this proposal, CEQ considered these comments as well 
as the rationale provided for the 2020 Rule and, in alignment with the 
discussion provided earlier in this section, disagrees with the 
rationale provided for the 2020 Rule and agrees with the comments that 
opposed the addition of the ceiling provisions. Even if the ceiling 
provisions would reduce costs and delays in some circumstances, which 
commenters did not provide evidence to support, CEQ considers the 
benefits of agency flexibility to outweigh the potential costs and 
delays. NEPA is more than a check-the-box paperwork exercise. Providing 
agencies flexibility to integrate their NEPA reviews into their unique 
programs can both make the decision-making process more efficient--
because the process can be tailored to the particularities of agency 
programs--and more effective because a more tailored environmental 
review process may result in environmental reviews that better inform 
the decision maker and the public. Moreover, CEQ retains authority to 
review proposed agency procedures for consistency with CEQ's 
regulations and can evaluate specific proposals made by agencies at 
that time and work with the agencies to ensure implementing procedures 
do not result in undue cost or delay. CEQ invites public comment on 
this proposed provision.

C. Definition of ``Effects'' or ``Impacts'' (Sec.  1508.1(g))

    NEPA requires Federal agencies to examine the environmental effects 
of their proposed actions and alternatives and any adverse 
environmental effects that cannot be avoided if the proposed action is 
implemented. 42 U.S.C. 4332(2)(C). CEQ proposes to revise the 
definition of ``effects'' or ``impacts'' in Sec.  1508.1(g) to restore 
the substance of the definitions of ``effects'' and ``cumulative 
impacts'' contained in the 1978 NEPA Regulations with some minor, non-
substantive changes for consistency with the current format of the Code 
of Federal Regulations. Specifically, CEQ proposes to restore the 
definitions of ``direct'' and ``indirect'' effects, and ``cumulative 
impacts'' from the 1978 NEPA Regulations, 40 CFR 1508.7 and 1508.8 
(2019), by incorporating them into the definition of ``effects'' or 
``impacts,'' such that each reference to these terms throughout 40 CFR 
parts 1500 through 1508 would include direct, indirect, and cumulative 
effects.
    Direct effects are effects caused by the action and occur at the 
same time and place. 40 CFR 1508.8(a) (2019). Indirect effects are 
effects caused by the action that are later in time or farther removed 
in distance but are still reasonably foreseeable. Id. at Sec.  
1508.8(b). Cumulative effects are effects resulting from the 
incremental impact of the action when added to other past, present, and 
reasonably foreseeable future actions regardless of who undertakes the 
other actions. Id. at Sec.  1508.7.
    CEQ's proposal would remove the language from paragraph (g) 
defining ``effects'' as those ``that are reasonably foreseeable and 
have a reasonably close causal relationship.'' The proposal also would 
remove and replace paragraph (g)(2), which states that a ``but for'' 
causal relationship is insufficient to make an agency responsible for a 
particular effect under NEPA; generally excludes effects that are 
remote in time, geographically remote, or the product of a lengthy 
causal chain; and fully excludes effects that the agency has no ability 
to prevent due to its limited statutory authority or would occur 
regardless of the proposed action. The proposed rule also would remove 
and replace paragraph (g)(3), which states that an agency's analysis of 
effects must be consistent with the definition of ``effects'' and 
explicitly repeals the definition of cumulative impact in 40 CFR 1508.7 
(2019). CEQ proposes to remove this language because it creates 
confusion and could be read to improperly narrow the scope of 
environmental effects relevant to NEPA analysis, contrary to NEPA's 
purpose.
    CEQ's proposal would retain the introductory phrase added in the 
2020 Rule that defines ``effects'' as ``changes to the human 
environment from the proposed action or alternatives.'' This revision 
eliminated the circular definition (``effects'' include effects) of the 
1978 NEPA Regulations. Finally, CEQ does not propose to include the 
statement from the 1978 NEPA Regulations that ``effects'' and 
``impacts'' as used in the regulations are

[[Page 55763]]

synonymous, as this statement would be redundant as the definition 
defines both ``effects'' and ``impacts'' together.
1. Reinstating ``Direct'' and ``Indirect'' Effects
    CEQ proposes to restore the terms ``direct'' and ``indirect'' to 
the definition of ``effects'' to realign the regulations with 
longstanding agency practice \24\ and judicial decisions interpreting 
NEPA. Based on CEQ's extensive experience implementing NEPA, this 
change would better reflect NEPA's statutory purpose and intent and be 
more consistent with case law, as courts have interpreted the NEPA 
statute to require agencies to analyze the reasonably foreseeable 
direct and indirect effects of a proposed action and alternatives. See, 
e.g., Minn. Pub. Int. Rsch. Grp. v. Butz, 498 F.2d 1314, 1322 (8th Cir. 
1974) (stating that NEPA ``is concerned with indirect effects as well 
as direct effects,'' and emphasizing long-term effects as a reason that 
a logging project would significantly affect the environment and 
require an EIS); see also, e.g., Sierra Club v. Fed. Energy Reg. 
Comm'n, 867 F.3d 1357, 1371-72 (D.C. Cir. 2017); San Juan Citizens All. 
v. U.S. Bureau of Land Mgmt., 326 F. Supp. 3d 1227, 1244 (D.N.M. 2018) 
(holding that greenhouse gas emissions are foreseeable indirect effects 
of leases for fossil fuel production and approvals of pipelines that 
transport fossil fuels). As reflected in many of the public comments to 
the 2020 Rule as well as in CEQ's discussions with agency NEPA 
practitioners who have asked CEQ for clarification since the 2020 Rule 
went into effect, this change would eliminate confusion caused by the 
modified definition and ensure that the NEPA process fully and fairly 
considers the appropriate universe of effects, such as air and water 
pollution, greenhouse gas emissions that contribute to climate change, 
and effects on communities with environmental justice concerns.
---------------------------------------------------------------------------

    \24\ See, e.g., Bureau of Land Management National Environmental 
Policy Act Handbook H-1790-1, sec. 6.8.2 (January 2008); 36 CFR 
220.4(f), 220.7(b)(iv) (Forest Service); 32 CFR 651.29(b), 
651.34(f), 651.51(a)(3), Appendix to E to Part 651--Content of EIS 
(Army Corps of Engineers).
---------------------------------------------------------------------------

    While the 2020 NEPA Regulations retained the definition of 
``direct'' effects without using the term, the revised definition 
creates ambiguity regarding whether and to what extent indirect effects 
are included in the definition of ``effects.'' In particular, the 
definition states in paragraph (g) that effects ``may include effects 
that are later in time or farther removed in distance'' but then states 
in paragraph (g)(2) that effects should generally not be considered if 
they are remote in time or geographically remote. CEQ's proposed 
changes would provide clarity to agencies, practitioners, and the 
public by restoring the terms and definitions of ``direct'' and 
``indirect,'' as these terms can help agencies and the public evaluate 
and understand the full scope of reasonably foreseeable effects in NEPA 
reviews.
    This reinstatement also would ensure that agencies consider the 
full range of reasonably foreseeable effects in the NEPA process, 
consistent with NEPA's goal of facilitating reason-based decision 
making that protects public health and the environment, as well as this 
Administration's policies to be guided by science and to address 
environmental protection, climate change, and environmental justice. 
For example, air pollution, including greenhouse gas emissions, 
released by fossil fuel combustion is often a reasonably foreseeable 
indirect effect of proposed fossil fuel extraction that agencies should 
evaluate in the NEPA process, even if the pollution is remote in time 
or geographically remote from a proposed action. And even where an 
agency does not exercise regulatory authority over all aspects of a 
project, it may be appropriate to consider and compare the air 
pollution and greenhouse gas emission effects that the proposal and the 
reasonable alternatives would have on the environment, even if the 
agency does not have control over all of the emissions that the 
alternatives would produce. The consideration of such effects can 
provide important information on the selection of a preferred 
alternative; for example, an agency decision maker might select the no 
action alternative, as opposed to a fossil fuel leasing alternative, on 
the basis that it best aligns with the agency's statutory authorities 
and policies with respect to greenhouse gas emission mitigation.\25\
---------------------------------------------------------------------------

    \25\ Agencies may consider all available tools and resources in 
assessing GHG emissions and climate change effects of their proposed 
actions, including, as appropriate and relevant, CEQ's 2016 ``Final 
Guidance for Federal Departments and Agencies on Consideration of 
Greenhouse Gas Emissions and the Effects of Climate Change in 
National Environmental Policy Act Reviews,'' 81 FR 51866 (Aug. 5, 
2016). Additionally, under E.O. 13990, the Interagency Working Group 
(IWG) on the Social Cost of Greenhouse Gases published interim 
estimates and is preparing updated estimates, which agencies may 
find helpful in considering greenhouse gas emission effects and 
mitigation as part of the NEPA process. See https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf?source=email. This proposed rule does not specifically address the 
IWG's interim or final Social Cost of Greenhouse Gases estimates. 
More information on the interim estimates is available from the 
Office of Information and Regulatory Affairs. See https://www.whitehouse.gov/wp-content/uploads/2021/06/Social-Cost-of-Greenhouse-Gas-Emissions.pdf.
---------------------------------------------------------------------------

    Use of the terms ``direct'' and ``indirect'' also can help explain 
both adverse and beneficial effects over various timeframes. For 
instance, a utility-scale solar facility could have short-term direct 
adverse effects, such as land impacts associated with construction. The 
facility also could have long-term indirect beneficial effects, such as 
reductions in air pollution, including greenhouse gas emissions, from 
the renewable energy generated by the solar facility that displaces 
more greenhouse gas-intensive energy sources (such as coal or natural 
gas) as an electricity source for years or decades into the future. 
Consistent with CEQ's proposed restored definition, such indirect 
effects could be caused by the action to authorize a new solar 
facility, and would be later in time or farther removed in distance yet 
still reasonably foreseeable. Fully evaluating the effects of the 
facility would require identifying and evaluating both the direct and 
indirect effects of the proposed action.
    The 2020 NEPA Regulations also removed the explanatory examples of 
indirect effects, including growth-inducing effects and other effects 
related to induced changes in the pattern of land use, population 
density, or growth rate, and related effects on air and water and other 
natural systems, including ecosystems. Restoring these examples is 
appropriate to highlight indirect effects that may be associated with 
myriad proposed Federal actions, such as expanding or repairing Federal 
highways or authorizing new renewable energy projects.
    Numerous public comments discussed the elimination of references to 
``direct'' and ``indirect'' in the definition of ``effects'' during the 
rulemaking for the 2020 NEPA Regulations. Commenters who supported the 
elimination of ``direct'' and ``indirect'' expressed views that the 
existing language creates confusion, that removal of the terms could 
help reduce the length of NEPA documents, and that retaining the terms 
would lead to an increase in litigation. Commenters also raised 
concerns that the terms have expanded the scope of NEPA analysis 
without serving NEPA's purpose of informed decision making but did not 
provide bases, analyses, or evidence to support these conclusions. The 
2020 Rule adopted the position of these comments. CEQ considers the 
disclosure of both direct and indirect effects to be critical to the 
informed

[[Page 55764]]

decision-making process such that the benefits of any such disclosure 
outweigh any potential for shorter NEPA documents or timeframes. 
Moreover, a well-drafted NEPA document can both be concise and 
supported by thorough analysis, and agencies have decades of experience 
considering the direct and indirect effects of their proposed actions. 
CEQ considers the potential for reduced litigation from the 2020 
changes to be speculative, especially given the confusion that has 
resulted from deleting these familiar terms. Finally, CEQ expects that 
restoring these definitions that have been in place and in use for 
decades will better clarify the effects agencies need to consider in 
their NEPA analyses and may even help avoid delays in NEPA reviews.
    The vast majority of comments on the 2020 NEPA Regulations opposed 
the removal of the terms, and CEQ views those comments as supporting 
its proposal to restore the terms ``direct'' and ``indirect'' to the 
definition of ``effects.'' Commenters expressed views that retaining 
the terms would reduce confusion and litigation. They also expressed 
views that direct and indirect effects are critical elements of the 
evaluation of potential environmental effects of a proposed action, and 
they raised concerns that by deleting the term ``indirect,'' agencies 
may not adequately consider long-term or geographically remote impacts, 
including greenhouse gas emissions or water pollution that travels 
downstream. Commenters supported their views by pointing to CEQ's 
longstanding guidance and decades of agency guidance and court 
decisions using the terms to address effects pursuant to NEPA. Many 
commenters argued that removal of these terms would be contrary to the 
intent of the statute, and that consideration of both direct and 
indirect effects is essential to determining significance. CEQ invites 
comment on these proposed changes.
2. Adding ``Cumulative Effects'' to the Definition of ``Effects''
    CEQ proposes to revise Sec.  1508.1(g)(3) by restoring, with minor 
modifications, the definition of ``cumulative impacts'' from the 1978 
NEPA Regulations and striking the current provision that repealed that 
definition. Analysis of reasonably foreseeable cumulative effects is 
integral to sound and complete environmental review. Cumulative effects 
analysis is an essential component of NEPA analysis, as it allows 
agencies and the public to understand how the incremental impacts of a 
proposed action contribute to cumulative environmental problems such as 
air pollution, water pollution, climate change, and biodiversity loss, 
among others. Today, science and data confirm that cumulative 
environmental harms, including repeated or frequent exposure to toxic 
air or water pollution, threaten human and environmental health and 
poses undue burdens on historically marginalized communities.\26\ CEQ 
seeks to ensure that agencies fully analyze reasonably foreseeable 
cumulative effects before Federal decisions are made by restoring the 
term and its definition.
---------------------------------------------------------------------------

    \26\ See, e.g., Mercedes A. Bravo et al., Racial Isolation and 
Exposure to Airborne Particulate Matter and Ozone in Understudied 
U.S. Populations: Environmental Justice Applications of Downscaled 
Numerical Model Output, 92-93 Env't Int'l 247 (2016) (finding that 
long-term exposure to particulate matter is associated with racial 
segregation, with more highly segregated areas suffering higher 
levels of exposure).
---------------------------------------------------------------------------

    The 2020 Rule's deletion of the definition of ``cumulative 
impacts'' did not exclude reasonably foreseeable effects from 
consideration merely because they could be categorized as cumulative 
effects. In responding to comments about potential effects on 
threatened and endangered species, the preamble to the 2020 Rule 
explains that ``the final rule does not ignore cumulative effects on 
listed species.'' \27\ CEQ similarly explained in the Final Rule 
Response to Comments that the 2020 Rule did not automatically exclude 
from analysis effects falling within the deleted definition of 
``cumulative impacts.'' \28\ However, CEQ considers the deletion of the 
longstanding term to have the potential to create confusion about when 
and if agencies should analyze cumulative effects, and creates 
uncertainty regarding this type of effects analysis contrary to 
longstanding agency practice and NEPA's purpose. For example, CEQ has 
heard from Federal agency NEPA practitioners both individually and in 
agency meetings that they would like clarification about how to address 
cumulative effects, including whether it remains permissible to use the 
term, in light of the changes made in 2020. In addition, outside 
stakeholders have raised concerns in meetings and listening sessions 
regarding the deletion of the term in light of the potential impact 
this could have in truncating the environmental review and disclosure 
of important categories of effects. Additionally, public comments 
received on the proposed 2020 Rule raised such concerns. By restoring 
the definition of cumulative effects, the proposed rule would clarify 
that agencies must analyze and disclose reasonably foreseeable 
cumulative effects.
---------------------------------------------------------------------------

    \27\ 85 FR 43355 (July 16, 2020).
    \28\ Council on Environmental Quality, Update to the Regulations 
Implementing the Procedural Provisions of the National Environmental 
Policy Act Final Rule Response to Comments 467 (June 30, 2020), 
https://www.regulations.gov/document/CEQ-2019-0003-720629.
---------------------------------------------------------------------------

    Since its initial NEPA guidelines in 1970, CEQ has interpreted the 
statute as requiring consideration of cumulative effects. In its 1970 
interim guidelines, CEQ provided that agencies should construe the 
statutory clause ``major Federal actions significantly affecting the 
quality of the human environment'' ``with a view to the overall, 
cumulative impact of the action proposed (and of further actions 
contemplated).'' \29\ CEQ explained that agencies should consider 
``that the effect of many Federal decisions about a project or complex 
of projects can be individually limited but cumulatively considerable'' 
because, for instance, agencies may provide funds over a period of 
years or multiple agencies may individually make decisions about 
partial aspects of a project.\30\ The guidelines further stated that an 
agency should prepare an EIS ``if it is reasonable to anticipate a 
cumulatively significant impact on the environment from the Federal 
action.'' \31\
---------------------------------------------------------------------------

    \29\ 35 FR 7390, 7391 (May 12, 1970) (emphasis added).
    \30\ Id.
    \31\ Id.
---------------------------------------------------------------------------

    These initial guidelines also interpreted the requirement in 
section 102(2)(C)(iv) to mean that ``[t]he relationship between local 
short-term uses of man's environment and the maintenance and 
enhancement of long-term productivity . . . requires the agency to 
assess the action for cumulative and long-term effects from the 
perspective that each generation is trustee of the environment for 
succeeding generations.'' \32\ This interpretation is reflected in the 
1971 final guidelines \33\ and the 1978 NEPA Regulations.\34\ Decades 
of agency practice and CEQ guidance affirm the interpretation that NEPA 
requires analysis of cumulative effects.\35\ For example, in 1997 CEQ 
noted that cumulative effects analysis is ``critical'' for the purposes 
of evaluating project

[[Page 55765]]

alternatives and developing appropriate mitigation strategies.\36\
---------------------------------------------------------------------------

    \32\ Id. at 7392 (emphasis added).
    \33\ 36 FR 7724 (Apr. 23, 1971).
    \34\ See 43 FR 55978 (Nov. 23, 1978).
    \35\ See, e.g., CEQ, Considering Cumulative Effects Under the 
National Environmental Policy Act (1997), https://ceq.doe.gov/publications/cumulative_effects.html; U.S. EPA, EPA 315-R-00-002, 
Consideration of Cumulative Impacts in EPA Review of NEPA Documents 
1 (1999) (``Because federal projects cause or are affected by 
cumulative impacts, this type of impact must be assessed in 
documents prepared under NEPA.'').
    \36\ CEQ, supra note 35, at v.
---------------------------------------------------------------------------

    CEQ's proposal to reinstate the definition of ``cumulative 
impacts'' aligns with longstanding legal precedent interpreting NEPA to 
require agencies to consider cumulative effects. Even before CEQ issued 
regulations on cumulative effects, the U.S. Supreme Court had 
interpreted NEPA to include them. In 1976, the Court held that NEPA 
requires consideration of cumulative effects ``when several proposals . 
. . that will have cumulative or synergistic environmental impact upon 
a region are pending concurrently before an agency, their environmental 
consequences must be considered together.'' Kleppe v. Sierra Club, 427 
U.S. 390, 410 (1976) (emphasis added).
    Numerous commenters on the proposed 2020 Rule raised concerns that 
the 2020 Rule could be interpreted to eliminate consideration of 
cumulative effects and eliminating consideration of cumulative effects 
would undermine NEPA's purpose and environmental protection goals, and 
could interfere with the necessary analysis of a proposed action's 
impacts. Other commenters expressed views that indirect and cumulative 
effects often disproportionately affect Tribes, minority, and low-
income populations, and excluding the details of such effects from NEPA 
analyses could lead agency decision makers to unknowingly make 
decisions that negatively impact Tribes or communities with 
environmental justice concerns. Some commenters who favored striking 
the requirement to analyze cumulative effects expressed views that the 
consideration of cumulative impacts could be redundant and that removal 
of cumulative effects would reduce the time it takes to complete the 
NEPA process. Other commenters were neutral on the change but expressed 
views that the proposed change would be controversial and could lead to 
potential litigation or delays. The 2020 Rule eliminated the 
``cumulative effects'' language, adopting the view that the analysis of 
cumulative effects was too broad, categorizing and determining the 
scope of cumulative effects is difficult and can divert agency 
resources from the most significant effects, and the analysis of 
cumulative effects could require agency attention to information that 
is irrelevant or inconsequential, and did not lead to informed decision 
making.
    CEQ considered these comments and the rationale described in the 
2020 Rule when developing this proposal. CEQ has changed its view and 
does not consider the term cumulative effects to be too broadly defined 
in the 1978 NEPA Regulations or too difficult for agencies to 
meaningfully implement. As explained earlier in this section, CEQ's own 
prior guidelines and guidance, along with decades of agency practice 
and longstanding legal precedent have interpreted NEPA to require 
agencies to consider cumulative effects. While the 2020 Rule found that 
cumulative effects was previously too broadly defined, the removal of 
``cumulative effects'' created an even less clear definition of 
effects, resulting in more confusion and uncertainty about what type of 
effects analysis is necessary. Rather than diverting agency resources 
or focusing on effects that are irrelevant or inconsequential, as the 
2020 Rule stated with respect to cumulative effects analysis, CEQ 
considers analysis of reasonably foreseeable cumulative effects to be 
an important part of NEPA analysis, helping the public and decision 
makers understand the full scope of potential impacts from a proposed 
action. Reasonably foreseeable cumulative effects are not irrelevant or 
inconsequential; for example, aggregate air and water pollution and 
habitat impacts affect long-term environmental conditions, wildlife, 
and communities--including in regions already overburdened by 
pollution. Analyzing reasonably foreseeable cumulative effects is 
consistent with NEPA's text and purpose and better informs decision 
makers about important aspects of proposed actions and their 
alternatives. Further, CEQ is not aware of any evidence supporting the 
claim that evaluation of cumulative effects necessarily leads to longer 
timelines, especially given the long history of agency and practitioner 
experience with this type of analysis as well as modern techniques that 
leverage science and technology to make reviews comprehensive yet 
efficient. And clarity on analyzing reasonably foreseeable cumulative 
effects, as proposed, would outweigh the speculative potential for 
shorter NEPA documents or timeframes.
    CEQ shares the view that environmental reviews should be efficient 
and effective and will continue to evaluate the NEPA process for 
opportunities to improve timeliness consistent with NEPA's purposes. 
However, CEQ disagrees that requiring analysis of reasonably 
foreseeable cumulative effects causes unacceptably long NEPA processes. 
Further, by deleting the definition of cumulative effects, the 2020 
Rule did not prohibit agencies from evaluating reasonably foreseeable 
cumulative effects and therefore, it was not certain to result in 
faster and less burdensome NEPA analyses. Rather, in affirmatively 
repealing the defined term from the regulations, the 2020 Rule has 
caused confusion and cast doubt as to whether agencies can and should 
continue to do this analysis. Finally, consideration of cumulative 
effects is important in order to fully inform agency decision makers 
before actions are taken, and effects analysis remains bound by the 
notion of reasonable foreseeability. CEQ invites comment on this 
proposed change.
3. Removing Limitations on Effects Analysis
    In proposing to restore the definition of ``effects'' from the 1978 
NEPA Regulations, CEQ would remove changes made in the 2020 Rule 
stating that effects are those ``that are reasonably foreseeable and 
have a reasonably close causal relationship to the proposed action or 
alternatives.'' 40 CFR 1508.1(g). CEQ also proposes to remove and 
replace Sec.  1508.1(g)(2), which states that ``a `but for' causal 
relationship is insufficient to make an agency responsible for a 
particular effect under NEPA;'' agencies generally should not consider 
effects that are remote in time, geographically remote, or the product 
of a lengthy causal chain; and agencies should not consider effects 
that the agency has no ability to prevent due to its limited statutory 
authority. Finally, the proposed rule would remove as superfluous and 
replace Sec.  1508.1(g)(3), which states that ``[a]n agency's analysis 
of effects shall be consistent with this paragraph.'' This phrase seeks 
to enforce the limitations added to the ``effects'' definition in the 
2020 Rule, which would be unnecessary if the limitations are removed.
    The definition of ``effects'' in the 1978 NEPA Regulations gave 
agencies the discretion to identify the reasonably foreseeable effects 
of a proposed action and its alternatives in light of NEPA's goals. It 
is CEQ's view that this approach provides for more sound decision 
making, including decisions informed by science, and a more 
knowledgeable and engaged public than the definition of ``effects'' in 
the 2020 NEPA Regulations. Whether an effect is reasonably foreseeable 
is a context-specific inquiry that Federal agencies have engaged in for 
more than 40 years. Agencies have made these determinations guided by 
agency procedures and practice, evolving scientific understanding about 
natural systems and environmental outcomes, and court decisions.
    The current definition of ``effects'' has internal inconsistencies, 
which make it

[[Page 55766]]

confusing to apply. The introductory paragraph of 40 CFR 1508.1(g) 
states that effects ``may include'' those that are later in time and 
farther removed in distance, but paragraph (g)(2) states that effects 
``should generally not be considered if they are remote in time, 
geographically remote, or the product of a lengthy causal chain.'' This 
creates confusion as to whether agencies can or should consider these 
types of effects, potentially leading to inconsistent application of 
NEPA, public confusion or controversy, and enhanced risk of litigation 
and concomitant delays in the NEPA process.
    Removing the language from Sec.  1508.1(g)(2) limiting the 
consideration of temporally or geographically removed environmental 
effects and effects that are a product of a lengthy causal chain would 
better align with the statutory text, which does not include any of 
these qualifiers and instead directs agencies to produce a detailed 
statement on the ``environmental impact of [a] proposed action,'' ``any 
adverse environmental effects which cannot be avoided,'' and ``the 
relationship between local short-term uses of man's environment and the 
maintenance and enhancement of long-term productivity.'' 42 U.S.C. 
4332(2)(C) (emphasis added). Many consequential reasonably foreseeable 
environmental effects, such as toxic releases into air or water and 
greenhouse gas emissions that contribute to climate change, often occur 
remote in time or place from the original action or are a product of a 
causal chain. For instance, when considering a potential Federal action 
that would permit fossil fuel extraction, it is reasonably foreseeable 
that the fossil fuel will be extracted, transported, and ultimately 
combusted to create energy, all of which cause air pollution that can 
have adverse public health and environmental effects. Thus, the 2020 
Rule's limiting language could cause Federal agencies to omit critical 
categories of effects from analysis and disclosure, frustrating NEPA's 
core purpose and Congressional intent. Similarly, the statement that 
``a `but for' causal relationship is insufficient to make an agency 
responsible for a particular effect under NEPA'' added a confusing new 
standard to apply that could cause agencies to omit reasonably 
foreseeable effects in NEPA reviews, contrary to NEPA's statutory 
purpose to promote informed decision making. CEQ disagrees that this 
language would help agencies better understand what effects they need 
to analyze and discuss, helping to reduce delays and paperwork with 
unnecessary analyses. Rather, the new language poses new implementation 
and interpretation challenges that could, in turn, create delays and 
conflict. The definition of ``effects'' that CEQ proposes to restore 
does not require that agencies disclose every possible effect; rather, 
the standard under NEPA has long been whether effects are reasonably 
foreseeable.
    Similarly, the direction in the 2020 Rule to exclude ``effects that 
the agency has no ability to prevent due to its limited statutory 
authority or would occur regardless of the proposed action'' unduly 
limits agency discretion. CEQ proposes to remove this limitation 
because agencies may conclude that analyzing and disclosing such 
effects will provide important information to decision makers and the 
public. For example, agencies may need to analyze and disclose 
reasonably foreseeable growth and development that will occur if they 
authorize infrastructure projects such as highway interchanges or 
causeways, even if they do not have general land use authority. See, 
e.g., Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985); City of Davis 
v. Coleman, 521 F.2d 661 (9th Cir. 1975). Reasonably foreseeable 
environmental effects do not fall neatly within discrete agency 
jurisdictional or regulatory confines; rather, agencies make decisions 
about reviews and authorizations that have real world impacts, 
including effects like water or air pollution that are measurable and 
ascertainable yet may have physical effects outside an agency's 
statutory purview.
    CEQ's proposal to restore the definition of ``effects'' from the 
1978 NEPA Regulations is consistent with the U.S. Supreme Court's 
decision in Department of Transportation v. Public Citizen, 541 U.S. 
752 (2004), which the 2020 Rule identified as the authority for the 
revised definition. In this case, the Supreme Court explained that NEPA 
and the 1978 NEPA Regulations are governed by a ``rule of reason.'' Id. 
at 767. The Federal Motor Carrier Safety Administration (FMCSA) was 
required to issue certification and safety regulations for Mexican 
trucks entering the United States, id. at 760, and had no ability to 
deny certification if trucks met the requirements, id. at 758-59. The 
Court held that, based on FMCSA's limited statutory authority, it was 
not arbitrary and capricious for FMCSA to exclude from its NEPA 
analysis the effects of trucks entering the United States that would 
result from the President's commitment to lift a moratorium on Mexican 
truck entry once FMCSA issued the regulations. See id. at 770. By 
affirming FMCSA's implementation of the 1978 NEPA Regulations under a 
substantial deference standard of review, the Court did not hold that 
agencies may not consider a broader range of effects in other 
circumstances, as the 2020 Rule suggests. Instead, the Court held that 
FMCSA's effects analysis in the specific factual and legal context of 
its proposed action was reasonable and not arbitrary and capricious.
    It is CEQ's view that establishing a regulatory limitation on the 
scope of NEPA analysis drawn from Public Citizen does not lead to 
improved agency decision making, enhanced public participation, or a 
better-informed public. Rather, as CEQ has heard from NEPA 
practitioners and outside stakeholders, these limitations undermine 
sound decision making by creating confusion with respect to NEPA 
implementation, departing from CEQ's consistent interpretation of NEPA 
prior to 2020, breaking from science-based decisions, and potentially 
limiting relevant NEPA analysis with negative repercussions in critical 
areas such as climate change and environmental justice. NEPA has long 
been understood to require only analysis of effects that are 
``reasonably foreseeable,'' but the limitations added by the 2020 NEPA 
Regulations could undermine longstanding agency discretion to determine 
the appropriate scope of analysis or result in agencies making less 
informed decisions contrary to NEPA's stated goals.
    Numerous commenters addressed these limitations during the 
rulemaking for the 2020 NEPA Regulations. Many opposed the limitations, 
expressing views that requiring a close causal relationship could be 
confusing to implement and could inappropriately constrain 
consideration of reasonably foreseeable impacts of a proposed action on 
the human environment, undermining the purpose of NEPA. Those opposed 
also expressed views that the new limitations could be used to justify 
the exclusion of effects of a proposed action including air or water 
pollution affecting communities or wildlife located outside the 
immediate vicinity of the proposed action that are nonetheless 
reasonably foreseeable. For example, the limitations could cause 
agencies to exclude consideration of the effects to a community that 
relies on a water source downstream from a project area that is 
indirectly impacted by the proposed action's water quality effects. 
Some commenters also stated that the term ``remote'' is too vague and 
relative. Those who supported the limitations expressed views that the 
changes were in keeping with the judicial precedent

[[Page 55767]]

cited in the proposed rule and could help cut the length and time of 
NEPA analysis by reducing burdens on Federal agencies; however, 
commenters did not provide evidence demonstrating how inclusion of 
these limitations would help cut the length and time of NEPA analysis.
    Upon reconsidering the position taken in the 2020 NEPA Regulations, 
CEQ proposes to remove these provisions in order to improve clarity on 
the types of effects that agencies must consider, eliminate 
restrictions that may conflict with scientific understanding of 
environmental outcomes, and better inform decision makers and the 
public about the full suite of reasonably foreseeable effects of a 
proposed action and its alternatives. CEQ disagrees that the provisions 
added in 2020 will reduce burdens on Federal agencies, given that 
Federal agencies have long operated under the definition of ``effects'' 
as defined in the 1978 NEPA Regulations and may have existing NEPA 
procedures aligned with the 1978 definitions. The 2020 Rule indicated 
that the added provisions would help agencies better understand what 
effects need to be analyzed and discussed and would reduce delays and 
unnecessary analysis. However, agencies have indicated confusion about 
how to apply the ``close causation'' and ``but for'' limitations in the 
current definition of effects and are concerned that the 2020 Rule may 
preclude them from considering the same range of effects as the 1978 
Regulations. With the proposed changes in this rulemaking, CEQ seeks to 
reduce confusion and provide clarity on the effects that agencies must 
consider and does not agree that removing this language will directly 
result in delays. Additionally, providing clarity to agencies and the 
public on what is required provides benefits to the environmental 
review process that outweigh any uncertain potential for shorter 
timeframes. CEQ requests comment on these changes. CEQ also invites 
comments on whether CEQ should provide in a Phase 2 rulemaking more 
specificity about the manner in which agencies should analyze certain 
categories of effects.

IV. Rulemaking Analyses and Notices

A. Executive Order 12866, Regulatory Planning and Review

    E.O. 12866 provides that the Office of Information and Regulatory 
Affairs will review all significant rules.\37\ E.O. 13563 reaffirms the 
principles of E.O. 12866, calling for improvements in the Federal 
Government's regulatory system to promote predictability, reduce 
uncertainty, and use the best, most innovative, and least burdensome 
tools for achieving regulatory objectives.\38\ This proposed rule is a 
significant regulatory action that CEQ submitted to OMB for review. The 
proposed changes would remove uncertainty created by the 2020 Rule to 
benefit agencies and the public. Removing constraints on agency NEPA 
analyses could result in longer review timeframes, but these changes do 
not obligate agencies to undertake longer, more complicated analyzes. 
If agencies choose to consider additional alternatives and conduct more 
robust analyses, these analyses should improve societal outcomes by 
improving agency decision making. Since individual cases will vary, the 
magnitude of potential costs and benefits resulting from these proposed 
changes are difficult to anticipate. Therefore, CEQ has not quantified 
them. CEQ invites public comment on those expected impacts and the role 
they should play in informing the final rule.
---------------------------------------------------------------------------

    \37\ 58 FR 51735 (Oct. 4, 1993).
    \38\ 76 FR 3821 (Jan. 21, 2011).
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B. Regulatory Flexibility Act and Executive Order 13272, Proper 
Consideration of Small Entities in Agency Rulemaking

    The Regulatory Flexibility Act (RFA), as amended, 5 U.S.C. 601 et 
seq., and E.O. 13272 \39\ require agencies to assess the impacts of 
proposed and final rules on small entities. Under the RFA, small 
entities include small businesses, small organizations, and small 
governmental jurisdictions. An agency must prepare an Initial 
Regulatory Flexibility Analysis (IRFA) unless it determines and 
certifies that a proposed rule, if promulgated, would not have a 
significant economic impact on a substantial number of small entities. 
5 U.S.C. 605(b). The proposed rule would not directly regulate small 
entities. Rather, the proposed rule would apply to Federal agencies and 
set forth the process for their compliance with NEPA. Accordingly, CEQ 
hereby certifies that the proposed rule, if promulgated, would not have 
a significant economic impact on a substantial number of small 
entities.
---------------------------------------------------------------------------

    \39\ 67 FR 53461 (Aug. 16, 2002).
---------------------------------------------------------------------------

C. National Environmental Policy Act

    Under the CEQ regulations, major Federal actions may include 
regulations. When CEQ issued regulations in 1978, it prepared a 
``special environmental assessment'' for illustrative purposes pursuant 
to E.O. 11991.\40\ The NPRM for the 1978 rule stated ``the impacts of 
procedural regulations of this kind are not susceptible to detailed 
analysis beyond that set out in the assessment.'' \41\ Similarly, in 
1986, while CEQ stated in the final rule that there were ``substantial 
legal questions as to whether entities within the Executive Office of 
the President are required to prepare environmental assessments,'' it 
also prepared a special environmental assessment.\42\ The special 
environmental assessment issued in 1986 made a finding of no 
significant impact, and there was no finding made for the assessment of 
the 1978 final rule.
---------------------------------------------------------------------------

    \40\ 43 FR 25230 (June 9, 1978).
    \41\ Id.
    \42\ 51 FR 15618, 15619 (Apr. 25, 1986).
---------------------------------------------------------------------------

    CEQ continues to take the position that a NEPA analysis is not 
required for establishing or updating NEPA procedures. See Heartwood v. 
U.S. Forest Serv., 230 F.3d 947, 954-55 (7th Cir. 2000) (finding that 
neither NEPA or the CEQ regulations required the Forest Service to 
conduct an environmental assessment or an EIS prior to the promulgation 
of its procedures creating a categorical exclusion). Nevertheless, 
based on past practice, CEQ has developed a special environmental 
assessment and has posted it in the docket. CEQ invites comments on the 
special environmental assessment.

D. Executive Order 13132, Federalism

    E.O. 13132 requires agencies to develop an accountable process to 
ensure meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism 
implications.\43\ Policies that have federalism implications include 
regulations that have substantial direct effects on the states, on the 
relationship between the Federal Government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government. CEQ does not anticipate that this proposed rule has 
federalism implications because it applies to Federal agencies, not 
states.
---------------------------------------------------------------------------

    \43\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------

E. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    E.O. 13175 requires agencies to have a process to ensure meaningful 
and timely input by Tribal officials in the development of policies 
that have Tribal implications.\44\ Such policies include regulations 
that have substantial direct effects on one or more Indian Tribes, on 
the relationship between the Federal

[[Page 55768]]

Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes. CEQ 
has assessed the impact of this proposed rule on Indian Tribal 
governments and has determined preliminarily that the proposed rule 
would not significantly or uniquely affect these communities but seeks 
comment on this preliminary determination. However, CEQ plans to engage 
in government-to-government consultation with federally recognized 
Tribes and Alaska Native Corporations on its NEPA regulations 
generally.
---------------------------------------------------------------------------

    \44\ 65 FR 67249 (Nov. 9, 2000).
---------------------------------------------------------------------------

F. Executive Order 12898, Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    E.O. 12898 requires agencies to make achieving environmental 
justice part of their missions by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects of their programs, policies, and activities on 
minority populations and low-income populations.\45\ CEQ has analyzed 
this proposed rule and preliminarily determined that it would not cause 
disproportionately high and adverse human health or environmental 
effects on minority populations and low-income populations. This rule 
would set forth implementing regulations for NEPA; it is in the agency 
implementation of NEPA when conducting reviews of proposed agency 
actions where consideration of environmental justice effects typically 
occurs. CEQ invites comment on this preliminary determination.
---------------------------------------------------------------------------

    \45\ 59 FR 7629 (Feb. 16, 1994).
---------------------------------------------------------------------------

G. Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Agencies must prepare a Statement of Energy Effects for significant 
energy actions under E.O. 13211.\46\ CEQ has preliminarily determined 
that this rulemaking is not a ``significant energy action'' because it 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.
---------------------------------------------------------------------------

    \46\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

H. Executive Order 12988, Civil Justice Reform

    Under section 3(a) of E.O. 12988,\47\ agencies must review their 
proposed regulations to eliminate drafting errors and ambiguities, 
draft them to minimize litigation, and provide a clear legal standard 
for affected conduct. Section 3(b) provides a list of specific issues 
for review to conduct the reviews required by section 3(a). CEQ has 
conducted this review and determined that this proposed rule complies 
with the requirements of E.O. 12988.
---------------------------------------------------------------------------

    \47\ 61 FR 4729 (Feb. 7, 1996).
---------------------------------------------------------------------------

I. Unfunded Mandate Reform Act

    Section 201 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1531, requires Federal agencies to assess the effects of their 
regulatory actions on state, local, and Tribal governments, and the 
private sector to the extent that such regulations incorporate 
requirements specifically set forth in law. Before promulgating a rule 
that may result in the expenditure by a state, Tribal, or local 
government, in the aggregate, or by the private sector of $100 million, 
adjusted annually for inflation, in any 1 year, an agency must prepare 
a written statement that assesses the effects on state, Tribal, and 
local governments and the private sector. 2 U.S.C. 1532. This proposed 
rule would apply to Federal agencies and would not result in 
expenditures of $100 million or more for state, local, and Tribal 
governments, in the aggregate, or the private sector in any 1 year. 
This proposed action also would not impose any enforceable duty, 
contain any unfunded mandate, or otherwise have any effect on small 
governments subject to the requirements of 2 U.S.C. 1531-1538.

J. Paperwork Reduction Act

    This proposed rule would not impose any new information collection 
burden that would require additional review or approval by OMB under 
the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Parts 1502, 1507, and 1508

    Administrative practice and procedure, Environmental impact 
statements, Environmental protection, Natural resources.

Brenda Mallory,
Chair.

    For the reasons discussed in the preamble, the Council on 
Environmental Quality proposes to amend parts 1502, 1507, and 1508 in 
title 40 of the Code of Federal Regulations as follows:

PART 1502--ENVIRONMENTAL IMPACT STATEMENT

0
1. Revise the authority citation for part 1502 to read as follows:

    Authority:  42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, 
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.
0
2. Revise Sec.  1502.13 to read as follows:


Sec.  1502.13  Purpose and need.

    The statement shall briefly specify the underlying purpose and need 
to which the agency is responding in proposing the alternatives 
including the proposed action.

PART 1507--AGENCY COMPLIANCE

0
3. Revise the authority citation for part 1507 to read as follows:

    Authority:  42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, 
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.

0
4. Amend Sec.  1507.3 by revising paragraphs (a) and the introductory 
text of paragraph (b) to read as follows:


Sec.  1507.3  Agency NEPA procedures.

    (a) The Council has determined that the categorical exclusions 
contained in agency NEPA procedures as of September 14, 2020, are 
consistent with this subchapter.
    (b) No more than 36 months after September 14, 2020, or 9 months 
after the establishment of an agency, whichever comes later, each 
agency shall develop or revise, as necessary, proposed procedures to 
implement the regulations in this subchapter. When the agency is a 
department, it may be efficient for major subunits (with the consent of 
the department) to adopt their own procedures.
* * * * *

PART 1508--DEFINITIONS

0
5. Revise the authority citation for part 1508 to read as follows:

    Authority:  42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, 
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.

0
6. Amend Sec.  1508.1 by revising paragraphs (g) and (z) to read as 
follows:


Sec.  1508.1  Definitions.

* * * * *
    (g) Effects or impacts means changes to the human environment from 
the proposed action or alternatives and include the following:
    (1) Direct effects, which are caused by the action and occur at the 
same time and place.
    (2) Indirect effects, which are caused by the action and are later 
in time or farther removed in distance, but are still reasonably 
foreseeable. Indirect effects may include growth inducing effects and 
other effects related to induced

[[Page 55769]]

changes in the pattern of land use, population density or growth rate, 
and related effects on air and water and other natural systems, 
including ecosystems.
    (3) Cumulative effects, which are effects on the environment that 
result from the incremental effects of the action when added to the 
effects of other past, present, and reasonably foreseeable actions 
regardless of what agency (Federal or non-Federal) or person undertakes 
such other actions. Cumulative effects can result from individually 
minor but collectively significant actions taking place over a period 
of time.
    (4) Effects include ecological (such as the effects on natural 
resources and on the components, structures, and functioning of 
affected ecosystems), aesthetic, historic, cultural, economic, social, 
or health, whether direct, indirect, or cumulative. Effects may also 
include those resulting from actions which may have both beneficial and 
detrimental effects, even if on balance the agency believes that the 
effects will be beneficial.
* * * * *
    (z) Reasonable alternatives means a reasonable range of 
alternatives that are technically and economically feasible, and meet 
the purpose and need for the proposed action.
* * * * *
[FR Doc. 2021-21867 Filed 10-6-21; 8:45 am]
BILLING CODE 3325-F2-P