The following analysis was provided by ACRA Government Relations Committee Chair Kimball Banks.

Summary - Proposed revisions to 2020 CEQ regulations for implementing NEPA – 43 CFR Parts 1502, 1507, and 1508

CEQ is proposing to revisit and revise the 2020 revisions to 43 CFR Part 1500 et seq. using a 2- phased approach. ‘‘Phase 1,’’ published in the Federal Register on 10/7/21, focuses on specific provisions. Phase 2 will 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.

The purpose of Phase I is (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 and make a conforming edit to the definition of ‘‘reasonable alternatives’’; (2) to remove limitations on agency NEPA procedures for implementing the CEQ regulations; and (3) to return to the definitions of ‘‘effects’’ in the prior 1978 NEPA Regulations which the 2020 regulations revised. The focus is on those provisions that (1) pose significant near-term interpretation or implementation challenges for Federal agencies and would have the most impact to agencies’ NEPA processes before Phase 2 rulemaking is complete; (2) make sense to revert to the 1978 regulations; and (3) CEQ is unlikely to propose further revisions in Phase 2. Three provisions are addressed: 1) Purpose and Need (§ 1502.13), 2) Agency NEPA Procedures (§ 1507.3), and 3) Definition of ‘‘Effects’’ or ‘‘Impacts’’ (§ 1508.1(g))

1. Purpose and Need (§ 1502.13):
   
   CEQ proposes to revert to the language of the 1978 NEPA Regulations for purpose and need and conform the definition of ‘‘reasonable alternatives’’ in § 1508.1(z) to this change. CEQ argues that the 2020 regulations were too limiting and gave preference to the applicant’s proposed action to other alternatives, that the regulations required an agency to always base the purpose and need on an applicant proposed action and the agency’s statutory authority, which could be construed as requiring an agency to prioritize the applicant’s action over other relevant factors.
   
   CEQ argues that restoring the 1978 language will eliminate any confusion in the 2020 regulations and reaffirm agency discretion in developing statements of purpose and need so they are consistent with the agency’s decision-making responsibilities while considering multiple relevant factors. This would promote greater transparency and give equal consideration to other factors in addition to the applicant’s proposed action.
   
   
2. Agency NEPA Procedures (§ 1507.3):
   
   CEQ proposes to revise § 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, thereby enabling agencies to address their specific programs and the contexts in which they operate. The regulations would be the “floor” for NEPA compliance, not the “ceiling” as per the 2020 regulations.
   
   The proposed rule will remove language from § 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 § 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. The result will be greater latitude for agencies in how they comply with NEPA and the regulations.
   
   
3. Definition of ‘‘Effects’’ or ‘‘Impacts’’ (§ 1508.1(g)):
   
   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 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)).
   
   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 § 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 § 1508.7.
   
   CEQ proposes to remove the language from paragraph (g) in the 2020 regulations that define ‘‘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. Finally, the proposal 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 in the 2020 regulations. This language is to be removed because CEQ believes it creates confusion and could be read to improperly narrow the scope of environmental effects relevant to NEPA analysis.
   
   In short, these changes would remove limitations to Effects analysis that were central to the 2020 regulations.

So what will the effects from Phase 1 be on cultural resources? If anything, the effects will be positive, specifically the expansion of assessment of indirect and cumulative effects. More attention can be given to effects on cultural resources.

We will probably have to pay more attention to Phase 2, especially if that addresses stakeholders, consultation, public input, deadlines, and size and time limitations on EAs and EISs.