- Statements of purpose and needFinal Rule states that an EIS must contain a broad purpose/need statement when federal action involves the approval or denial of a proposal submitted by a nonfederal applicant. The rule removes the requirement for agencies to base the EIS’s purpose and need of a project on the goals of a nonfederal applicant. The Final Rule gives federal agencies the freedom to examine a wide range of factors, including those of nonfederal applicants. The Final Rule also conforms the definition of “reasonable alternatives” to remove reference to a nonfederal applicant’s goals. This revision seems to remove an approach to streamlining the environmental review of proposals from applicants other than federal. CEQ responded to objections to the revision by stating that it had not received any evidence that the revision would impact the environmental review process, timelines, or that the ambiguities in the current regulation further supported such revisions.
- Agency NEPA Procedures The Final Rule also removes “ceiling provisions” from NEPA regulations promulgated in 2020. These provisions prohibited federal agencies from imposing stricter NEPA reviews requirements than the CEQ regulations. CEQ asserted, however, that those provisions hampered federal agencies’ ability to take a wide range of approaches to their agency-specific NEPA procedures. CEQ withdrew those provisions, explaining that the change would “promote better decision, improve environmental and community outcomes, and spur innovation that advances NEPA’s goals.” CEQ clarified that “while agency NEPA procedures need to be consistent with the CEQ regulations, agencies have discretion and flexibility to develop procedures beyond the CEQ regulatory requirements, enabling agencies to address their specific programs, statutory mandates, and the contexts in which they operate.”
- “Effects” or “Impacts.” CEQ’s Final Rule also revises the definition of “effects” or “impacts” in 40 C.F.R. § 1508.1(g) to restore the original meaning contained in the 1978 regulations by defining “effects” and impacts” the same and
- revising the introductory paragraph to define “effects” or “impacts” as “changes to the human environment from the proposed action or alternatives” that include “direct effects,” “indirect effects,” and “cumulative effects” “that are reasonably foreseeable” (i.e., removing the phrase “and have a reasonably close causal relationship”)
- describing “direct effects” as “effects that occur at the same time and place” and “indirect effects” as “effects that are later in time or farther removed in distance” and conforming the definition of “cumulative impact”
- removing language that narrows the definition of “effects” such as the requirement for a “but for” causal relationship and “remote in time”
Although CEQ chose to maintain the clause “that are reasonably foreseeable” in the definition of effects/impacts that it originally proposed to delete, CEQ maintained the remaining portions of the Proposed Rule in an effort to be “consistent with this Administration’s policies to be guided by science and to address environmental protection, climate change, and environmental justice.”
Stakeholders who are currently undergoing NEPA review or who plan to embark on such a journey in the future should be aware of the fact that their environmental review may be more extensive and they need to be careful about considering reasonable alternatives. The Final Rule could face additional challenges, even though most of the pending or stayed litigation relating to these aspects of 2020 regulations is likely to be overturned. CEQ has not clarified if the revised regulations will require agencies or NEPA reviews to be adjusted by the revised regulations. In Response to comments, however, CEQ noted that “agencies have sufficient discretion to apply their existing NEPA procedures in a manner not inconsistent with CEQ’s regulations.” In its Announcement of the Final Rule, CEQ also noted that the “rule will not delay any projects or reviews underway and will not add time to the NEPA process.” Neither of these statements precludes federal agencies from adjusting ongoing NEPA reviews once the Final Rule becomes effective 30 days after publication, on May 20, 2022.
