Federal Register / Vol. 87, No. 76 / Wednesday, April 20, 2022 / Rules and Regulations 23453 

1See Linda Luther, Cong. Rsch. Serv., RL33152, 

The National Environmental Policy Act: 

Background and Implementation (2008), https://

crsreports.congress.gov/product/ 

details?prodcode=RL33152. 

TABLE I—§ 36.2.—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS—Continued 

Statute Description 

New maximum 

(and minimum, 

if applicable) 

penalty 

amount 

31 U.S.C. 1352(c)(1) and (c)(2)(A) ........... Provides for a civil penalty, as set by Congress in 1989, of $10,000 to $100,000 for 

recipients of Government grants, contracts, etc. that improperly lobby Congress 

or the Executive Branch with respect to the award of Government grants and 

contracts.

22,021 to 

220,213 

31 U.S.C. 3802(a)(1) and (a)(2) ............... Provides for a civil penalty, as set by Congress in 1986, of up to $5,000 for false 

claims and statements made to the Government.

12,537 

* * * * * 

PART 668—STUDENT ASSISTANCE 

GENERAL PROVISIONS 

■ 3. The general authority citation for 

part 668 continues to read as follows: 

Authority: 20 U.S.C. 1001–1003, 1070a, 

1070g, 1085, 1087b, 1087d, 1087e, 1088, 

1091, 1092, 1094, 1099c, 1099c–1, 1221e–3, 

and 3474; Pub. L. 111–256, 124 Stat. 2643; 

unless otherwise noted. 

* * * * * 

§ 668.84 [Amended] 

■ 4. In § 668.84 amend paragraph (a)(1) 

introductory text by removing the 

number ‘‘$59,017’’ and adding, in its 

place, the number ‘‘$62,689’’. 

[FR Doc. 2022–08222 Filed 4–19–22; 8:45 am] 

BILLING CODE 4000–01–P 

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: Final rule. 

SUMMARY: The Council on 

Environmental Quality (CEQ) issues this 

final rule to amend certain provisions of 

its regulations for implementing the 

National Environmental Policy Act 

(NEPA), addressing the purpose and 

need of a proposed action, agency NEPA 

procedures for implementing CEQ’s 

NEPA regulations, and the definition of 

‘‘effects.’’ The amendments generally 

restore provisions that were in effect for 

decades before being modified in 2020. 

DATES: This rule is effective May 20, 

2022. 

ADDRESSES: CEQ established a docket 

for this action under docket number 

CEQ–2021–0002. All documents in the 

docket are listed on 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Amy B. Coyle, Deputy General Counsel, 

202–395–5750, Amy.B.Coyle@

ceq.eop.gov. 

SUPPLEMENTARY INFORMATION: CEQ is 

issuing this final rule to amend three 

provisions of its regulations 

implementing the National 

Environmental Policy Act of 1969 

(NEPA), 42 U.S.C. 4321 et seq., which 

are set forth in 40 CFR parts 1500 

through 1508 (‘‘NEPA regulations’’ or 

‘‘CEQ regulations’’). First, CEQ is 

revising 40 CFR 1502.13 on the 

requirement for a purpose and need 

statement in an environmental impact 

statement. The revision clarifies that 

agencies have discretion to consider a 

variety of factors when assessing an 

application for an authorization, 

removing the requirement that an 

agency base the purpose and need on 

the goals of an applicant and the 

agency’s statutory authority. The final 

rule also makes a conforming edit to the 

definition of ‘‘reasonable alternatives’’ 

in 40 CFR 1508.1(z). Second, CEQ is 

revising 40 CFR 1507.3 to remove 

language that could be construed to 

limit agencies’ flexibility to develop or 

revise procedures to implement NEPA 

specific to their programs and functions 

that may go beyond the CEQ regulatory 

requirements. Third, CEQ is revising the 

definition of ‘‘effects’’ in paragraph (g) 

of 40 CFR 1508.1 to include direct, 

indirect, and cumulative effects. CEQ is 

making these changes in order to better 

align the provisions with CEQ’s 

extensive experience implementing 

NEPA and unique 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 to protect 

and enhance the quality of the human 

environment, including making 

decisions informed by science, and case 

law interpreting NEPA’s requirements. 

I. Background 

A. NEPA Statute 

Congress enacted NEPA in 1969 by a 

unanimous vote in the Senate and a 

nearly unanimous vote in the House 1 to 

declare an ambitious and visionary 

national policy to promote 

environmental protection for present 

and future generations. President Nixon 

signed NEPA into law on January 1, 

1970. NEPA seeks to ‘‘encourage 

productive and enjoyable harmony’’ 

between humans and the environment, 

recognizing the ‘‘profound impact’’ of 

human activity and the ‘‘critical 

importance of restoring and maintaining 

environmental quality’’ to the overall 

welfare of humankind. Furthermore, 

NEPA seeks to promote efforts that will 

prevent or eliminate damage to the 

environment and biosphere and 

stimulate the health and welfare of 

people, making 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 

generations of Americans. It also 

recognizes that each person should have 

the opportunity to enjoy a healthy 

environment and has a responsibility to 

contribute to the preservation and 

enhancement of the environment. 42 

U.S.C. 4321, 4331. 

NEPA requires Federal agencies to 

interpret and administer Federal 

policies, regulations, and laws in 

accordance with NEPA’s policies and to 

give appropriate consideration to 

environmental values in their decision 

making. To that end, section 102(2)(C) 

of NEPA requires Federal agencies to 

prepare ‘‘detailed statements,’’ referred 

to as environmental impact statements 

(EISs), for ‘‘every recommendation or 


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2 35 FR 4247 (Mar. 7, 1970), sec. 3(h). 

3See 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 46 FR 18026 (Mar. 23, 1981) (‘‘Forty 

Questions’’), https://www.energy.gov/nepa/ 

downloads/forty-most-asked-questions-concerningceqs-national-environmental-policy-act. 

7See https://www.energy.gov/nepa/ceq-guidancedocuments for a list of current CEQ guidance 

documents. 

8 44 FR 873 (Jan. 3, 1979). 

9 51 FR 15618 (Apr. 25, 1986) (amending 40 CFR 

1502.22). 

10 82 FR 40463 (Aug. 24, 2017). 

11 Id., sec. 5(e)(iii). 

12 83 FR 28591 (June 20, 2018). 

13The comments are available on 

www.regulations.gov under Docket No. CEQ–2018– 

0001. 

14 85 FR 1684 (Jan. 10, 2020). 

15See Docket No. CEQ–2019–0003, https://

www.regulations.gov/document/CEQ-2019-0003- 

0001. 

report on proposals for legislation and 

other major Federal actions significantly 

affecting the quality of the human 

environment’’ and, in doing so, provide 

opportunities for public participation to 

help inform agency decision making. 42 

U.S.C. 4332(2)(C). The EIS process 

embodies the understanding that 

informed decisions are better decisions, 

and that environmental conditions will 

improve when decision makers 

understand and consider environmental 

impacts. The EIS process also serves to 

enrich the understanding of the 

ecological systems and natural resources 

important to the Nation and helps guide 

sound decision making, including 

development, in line with the best 

available science and data. NEPA also 

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. It codifies the 

common-sense and fundamental idea of 

‘‘look before you leap’’ to guide agency 

decision making, particularly in 

complex and consequential areas, 

because conducting sound 

environmental analysis before actions 

are taken reduces conflict and waste in 

the long run by avoiding unnecessary 

harms and uninformed decisions. It 

establishes a framework for agencies to 

ground decisions in sound science and 

recognizes that the public may have 

important ideas and information on how 

Federal actions can occur in a manner 

that reduces potential harms and 

enhances ecological, social, and 

economic well-being. See, e.g., 42 U.S.C. 

4331, 4332(2)(A). 

B. Regulatory Implementation of NEPA 

1970–2020 

In 1970, President Nixon issued 

Executive Order (E.O.) 11514, Protection 

and Enhancement of Environmental 

Quality, directing 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 for implementation 

of section 102(2)(C) of NEPA and 

requiring that Federal agencies comply 

with those regulations.4 CEQ 

promulgated its NEPA regulations in 

1978.5 Issued 8 years after NEPA’s 

enactment, the NEPA regulations 

reflected CEQ’s interpretation of the 

statutory text and Congressional intent, 

expertise developed through issuing and 

revising the CEQ guidelines and 

advising Federal agencies on their 

implementation of NEPA, initial 

interpretations of the courts, and 

Federal agency experience 

implementing NEPA. The 1978 

regulations reflected the fundamental 

principles of informed and sciencebased decision making, transparency, 

and public engagement Congress 

established in NEPA. They directed 

Federal agencies to issue and update 

periodically agency-specific 

implementing procedures to 

supplement CEQ’s procedures and 

integrate the NEPA process into the 

agencies’ specific programs and 

processes. Consistent with 42 U.S.C. 

4332(2)(B), the regulations also required 

agencies to consult with CEQ in the 

development or update of these agencyspecific procedures to ensure 

consistency with CEQ’s regulations. 

In 1981, CEQ issued the ‘‘Forty Most 

Asked Questions Concerning CEQ’s 

National Environmental Policy Act 

Regulations,’’ 6 one of numerous 

guidance documents CEQ has issued. 

The ‘‘Forty Questions’’ reflected CEQ’s 

contemporaneous interpretation of the 

1978 regulations and grew out of 

meetings CEQ held in ten Federal 

regions to discuss implementation of the 

CEQ regulations with Federal, state, and 

local government officials, which 

identified common questions. The Forty 

Questions guidance is the most 

comprehensive guidance CEQ has 

issued on the 1978 regulations, 

addressing a broad set of topics from 

alternatives to tiering. Since its 

issuance, CEQ has routinely identified 

the Forty Questions guidance as an 

invaluable tool for Federal, state, Tribal, 

and local governments and officials, and 

members of the public, who have 

questions about NEPA implementation. 

Since 1981, CEQ has issued more than 

30 additional guidance documents on a 

range of topics including efficient and 

coordinated environmental reviews, 

mitigation and monitoring, and effects 

analyses.7

CEQ made technical amendments to 

the 1978 implementing regulations in 

1979 8 and amended one provision in 

1986 (referred to collectively as 1978 

regulations).9 Otherwise, the regulations 

were left unchanged for over 40 years. 

As a result, CEQ and Federal agencies 

developed extensive experience 

implementing the 1978 regulations, and 

a large body of agency practice and case 

law developed based on them. 

C. 2020 Amendments to the CEQ 

Regulations 

On August 15, 2017, President Trump 

issued E.O. 13807, Establishing 

Discipline and Accountability in the 

Environmental Review and Permitting 

Process for Infrastructure Projects,10

directing, in part, CEQ to establish and 

lead an interagency working group to 

identify and propose changes to the 

NEPA regulations.11 In response, CEQ 

issued an advanced notice of proposed 

rulemaking (ANPRM) on June 20, 2018, 

requesting comment on potential 

revisions to ‘‘update and clarify’’ the 

CEQ regulations and including a list of 

questions on specific aspects of the 

regulations.12 CEQ received 

approximately 12,500 comments.13

On January 10, 2020, CEQ published 

a notice of proposed rulemaking 

(NPRM) proposing broad revisions to 

the 1978 NEPA regulations.14 A wide 

range of stakeholders submitted more 

than 1.1 million comments on the 

proposed rule,15 including state and 

local governments, Tribes, 

environmental advocacy organizations, 

professional and industry associations, 

other advocacy or non-profit 

organizations, businesses, and private 

citizens. 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 (‘‘2020 

regulations’’ or ‘‘2020 rule’’), made 


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16 85 FR 43304 (July 16, 2020). 

17Wild Va. v. Council on Env’t Quality, No. 

3:20cv45 (W.D. Va. 2020); Env’t 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 challenged 

the U.S. Forest Service’s NEPA implementing 

procedures, which established new categorical 

exclusions, and, relatedly, the 2020 rule’s 

provisions on categorical exclusions. 

18Wild Va. v. Council on Env’t Quality, 544 F. 

Supp.3d 620 (W.D. Va. 2021) (appeal pending). 

19 86 FR 7037 (Jan. 25, 2021). 

20 Id., sec. 1. 

21White House Fact Sheet: List of Agency Actions 

for Review (Jan. 20, 2021), https://

www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agencyactions-for-review/. 

22E.O. 14008, 86 FR 7619 (Feb. 1, 2021). E.O. 

14008’s direction to advance environmental justice 

reinforces and reflects the policy established in E.O. 

13985, Advancing Racial Equity and Support for 

Underserved Communities Through the Federal 

Government, that the Federal Government ‘‘pursue 

a comprehensive approach to advancing equity for 

all, including people of color and others who have 

been historically underserved, marginalized, and 

adversely affected by persistent poverty and 

inequality.’’ 86 FR 7009 (Jan. 20, 2021). 

23 Id., sec. 213(a); see also sec. 219 directing 

agencies to make achieving environmental justice 

part of their missions by developing programs, 

policies, and activities to address the 

disproportionately high and adverse human health, 

environmental, climate-related and other 

cumulative impacts on disadvantaged communities. 

24 86 FR 34154 (June 29, 2021). 

25 86 FR 55757 (Oct. 7, 2021). 

wholesale revisions to the regulations; it 

took effect on September 14, 2020.16

In the months that followed the 

issuance of the 2020 regulations, five 

lawsuits were filed challenging the 2020 

rule.17 These cases challenge the 2020 

rule 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, 2021,18 and is 

currently on appeal to the U.S. Court of 

Appeals for the Fourth Circuit. 

D. CEQ’s Comprehensive Review of the 

2020 Regulations 

On January 20, 2021, President Biden 

issued E.O. 13990, Protecting Public 

Health and the Environment and 

Restoring Science to Tackle the Climate 

Crisis,19 to establish 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 the 

Nation’s treasures and monuments; and 

prioritize both environmental justice 

and the creation of well-paying union 

jobs necessary to achieve these goals.20

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 

it articulates and to take appropriate 

action. The E.O. also revokes E.O. 13807 

and directs agencies to promptly take 

steps to rescind any rules or regulations 

implementing it. An accompanying 

White House fact sheet, published on 

January 20, 2021, specifically directs 

CEQ to review the 2020 regulations for 

consistency with E.O. 13990’s policy.21

On January 27, 2021, the President 

signed E.O. 14008, Tackling the Climate 

Crisis at Home and Abroad, to establish 

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.22 E.O. 14008 also 

requires the Chair of CEQ and the 

Director of the Office of Management 

and Budget (OMB) to ensure that 

Federal permitting decisions consider 

the effects of greenhouse gas emissions 

and climate change.23

Consistent with E.O. 13990 and E.O. 

14008, CEQ is engaged in a 

comprehensive review of the 2020 

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, 

advances environmental justice, 

respects Tribal sovereignty, protects our 

Nation’s resources, and promotes better 

environmental and community 

outcomes. CEQ is taking a phased 

approach to its comprehensive review, 

which includes this Phase 1 rulemaking 

and a planned, more comprehensive 

Phase 2 rulemaking. Additionally, as a 

preliminary matter, 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 existing agency-specific 

NEPA procedures by September 14, 

2021, to make those procedures 

consistent with the 2020 regulations.24

CEQ extended the date by 2 years to 

avoid agencies proposing changes to 

agency-specific implementing 

procedures on a tight deadline to 

conform to regulations that are 

undergoing extensive review and will 

likely change in the near future. CEQ 

requested comments on the interim final 

rule and received approximately 20 

written submissions; summaries and 

responses to those comments are 

included in the response to comments 

document posted to the docket for this 

rulemaking. 

As a next step in the phased 

approach, CEQ published a proposed 

rule 25 for the Phase 1 rulemaking on 

October 7, 2021. In the Phase 1 

proposed rule, CEQ identified a discrete 

set of provisions that pose significant 

near-term interpretation or 

implementation challenges for Federal 

agencies; would have the most impact to 

agencies’ NEPA processes during the 

interim period before a ‘‘Phase 2’’ 

rulemaking is complete and make sense 

to revert to the 1978 regulatory 

approach. In proposing to revert to 

language conforming to the approach in 

the 1978 regulations, the proposed rule 

addressed 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 rule. 

Publication of the proposed rule 

initiated a 45-day public comment 

period that concluded on November 22, 

2021. CEQ received approximately 

94,458 written comments in response to 

the proposed rule. Seventy-six 

comments were shared with CEQ during 

two virtual public meetings CEQ hosted 

on the proposed rule on October 19, 

2021, and October 21, 2021. In total, 

CEQ received 94,534 comments on the 

proposed rule, which CEQ considered 

in the development of this final rule. A 

majority of the comments 

(approximately 93,893) were campaign 

form letters sent in response to an 

organized initiative and identical or 

very similar in form and content. CEQ 

received approximately 573 unique 

public comments, of which 362 were 

substantive comments raising a variety 

of issues related to the rulemaking 

approach and contents of the proposed 

rule. The vast majority of the unique 

comments expressed some level of 

support for the proposed rule. Many 

supportive comments included 

suggestions for Phase 2 or expressed 

general support for Phase 1 while also 


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26The National Environmental Policy Act 

Implementing Regulations Revision Phase 1 

Response to Comments is available under 

‘‘Supporting & Related Materials’’ in the docket on 

www.regulations.gov under docket ID CEQ–2021– 

0002, available at https://www.regulations.gov/ 

docket/CEQ-2021-0002/

document?documentTypes=Supporting%20%

26%20Related%20Material. 

indicating that the commenters would 

have preferred for CEQ to have 

proposed more comprehensive changes 

in Phase 1. CEQ provides a summary of 

the comments received on the proposed 

rule and responses to those comment 

summaries in the document, ‘‘National 

Environmental Policy Act Implementing 

Regulations Revision Phase 1 Response 

to Comments’’ (Phase 1 Response to 

Comments) and provides below brief 

summaries of comments and responses 

related to the provisions in the final 

rule. 

Separately, CEQ is developing a Phase 

2 rulemaking to propose comprehensive 

revisions to the 2020 regulations and 

intends to issue a second proposed rule 

for notice and public comment. Both the 

Phase 1 and Phase 2 rulemakings are 

intended to ensure that the NEPA 

process provides for efficient and 

effective environmental reviews that are 

guided by science and are consistent 

with the statute’s text and purpose; 

enhance clarity and certainty for Federal 

agencies, project proponents, and the 

public; inform the public about the 

potential environmental effects of 

Federal Government actions and enable 

full and fair public participation; and 

ultimately promote better informed 

Federal decisions that protect and 

enhance the quality of the human 

environment and advance 

environmental, climate change 

mitigation and resilience, and 

environmental justice objectives. 

E. Public Comments on the Phased 

Approach 

CEQ received multiple comments 

related to the phased approach that it 

has selected to organize its review of the 

2020 regulations. Numerous 

commenters suggested that CEQ set 

aside the 2020 regulations entirely and 

reissue the 1978 regulations to serve as 

a baseline for consideration of further 

regulatory reforms. These commenters 

expressed overall support for the 

content of the Phase 1 proposed rule, 

but contended that other provisions in 

the 2020 regulations also pose near-term 

challenges and also should be revised to 

revert to the 1978 text. Some of these 

commenters expressed the view that a 

full repeal of the 2020 regulations is 

needed to prevent conflicts between 

existing agency NEPA procedures and 

the CEQ regulations. Some commenters 

also requested that CEQ reissue the 1978 

regulations and not pursue additional 

revisions. CEQ also received many 

comments expressing support for the 

Phase 1 rulemaking and encouraging 

CEQ to quickly initiate and complete a 

Phase 2 rulemaking. Some of these 

commenters also identified additional 

provisions that the commenters 

contended Phase 1 should address or 

provided recommendations for 

consideration in Phase 2. 

Other commenters requested that CEQ 

pursue one overall rulemaking, rather 

than a phased approach. These 

commenters expressed views that one 

rulemaking has advantages, including 

enabling stakeholders and the public to 

understand and comment on the full 

scope of changes at one time, rather 

than in two phases. Some of these 

commenters also expressed concern that 

the phased approach could result in 

confusion and inefficiency. 

CEQ appreciates the views expressed 

by commenters on the phased approach 

and acknowledges that a single 

rulemaking process would have entailed 

different tradeoffs and conferred 

different benefits. However, CEQ 

considers the phased approach for its 

review of the 2020 regulations to strike 

the appropriate balance between the 

need to act quickly to address critical 

issues and the need to conduct a 

thorough review of the 2020 regulations. 

As explained above, CEQ determined 

that the phased approach will address 

important near-term implementation 

challenges while allowing sufficient 

time to conduct a thorough review of 

the 2020 regulations to determine what 

other changes, including additional 

reversions to the 1978 regulations and 

new revisions, may be necessary or 

appropriate. CEQ decided against 

proposing a full reversion to the 1978 

regulations in Phase 1 to focus time and 

resources on the most pressing issues 

and avoid the administrative burdens 

associated with analyzing each 

provision in the 2020 regulations, 

considering whether to revert each 

provision to the 1978 language and the 

reasoning for doing so, and responding 

to comments on the large number of 

regulatory provisions that would be 

affected. CEQ is a small agency with 

limited resources and had concerns 

about undertaking two large 

rulemakings—one to revert to the 1978 

regulations and a second to propose 

new updates. 

With this final rule, CEQ is 

concluding Phase 1 and will continue 

its work on Phase 2. In Phase 2, CEQ 

will consider the NEPA regulations 

comprehensively and assess whether to 

revise additional provisions to revert to 

the language of the 1978 regulations or 

to propose other revisions based on its 

expertise, NEPA’s policies and 

requirements, relevant case law, and 

feedback from Federal agencies and the 

public. Further information on the 

phased approach can be found in the 

Phase 1 Response to Comments. 

III. Summary of and Rationale for Final 

Rule 

This section summarizes and 

identifies CEQ’s rationale for the 

regulatory changes included in the final 

rule. This section also briefly 

summarizes and responds to the 

comments CEQ received in response to 

the NPRM. CEQ has provided more 

detailed summaries and responses in 

the Phase 1 Response to Comments 

document,26 which CEQ incorporates by 

reference and has made available in the 

docket for this rulemaking. 

Many commenters expressed general 

support for CEQ’s proposal and the 

general return to the language from the 

1978 regulations for the provisions on 

purpose and need; agency NEPA 

procedures; and the definition of effects. 

These commenters stated that the 2020 

rule weakened NEPA and that parts of 

the 2020 regulations were misguided 

and reflected a bias in favor of project 

proponents to the possible detriment of 

environmental values or the public 

interest. Several of these commenters 

indicated that the proposed revisions 

are important for providing clarity, 

certainty, and consistency. 

Commenters who expressed general 

opposition to the proposed rule were 

generally supportive of the 2020 

regulations. These commenters 

expressed disappointment about CEQ 

rescinding portions of the 2020 rule and 

expressed concerns that the proposed 

rule would slow down efforts to 

improve the nation’s infrastructure or 

harm certain economic sectors. Some of 

these commenters agreed with the goals 

that CEQ identified as guiding this 

rulemaking, but stated that the 2020 rule 

advanced those goals. 

CEQ acknowledges that there is both 

support for and opposition to the 

changes outlined in the NPRM, and that 

there are many additional provisions 

that commenters suggested CEQ should 

change in either the Phase 1 rulemaking 

or in future rulemakings. CEQ is 

considering these comments as it 

develops its proposed Phase 2 rule. 

This Phase 1 final rule is guided by 

the extensive experience of CEQ and 

Federal agencies implementing NEPA 

for the last 50 years. CEQ is charged 

with overseeing NEPA implementation 

across the Federal Government and 

reviews every agency’s proposed new or 


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27See https://www.energy.gov/nepa/ceqguidance-documents for a list of current CEQ 

guidance documents. 

28As noted in the 2020 rule, the definition of 

‘‘reasonable alternatives’’ was based in part on 

CEQ’s longstanding guidance, the ‘‘Forty Most 

Asked Questions Concerning CEQ’s National 

Environmental Policy Act Regulations,’’ 46 FR 

18026 (Mar. 23, 1981), as amended, 1986, https:// 

www.energy.gov/sites/default/files/2018/06/f53/GCEQ-40Questions.pdf. Specifically, the guidance 

states in response to Question 2A, ‘‘Reasonable 

alternatives include those that are practical or 

feasible from the technical and economic 

standpoint and using common sense, rather than 

simply desirable from the standpoint of the 

applicant.’’ 

updated NEPA implementing 

procedures. Through this iterative 

process, CEQ engages with agencies to 

understand their specific authorities 

and programs to ensure they integrate 

consideration of environmental impacts 

into their decision-making processes. 

Additionally, CEQ frequently consults 

with agencies on the efficacy and 

effectiveness of NEPA implementation. 

Where necessary or appropriate, CEQ 

engages with agencies on NEPA reviews 

for specific projects or project types to 

provide advice and identify any 

emerging or cross-cutting issues that 

would benefit from CEQ issuing formal 

guidance or assisting with coordination. 

For example, CEQ has convened 

interagency working groups to promote 

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 

actions, climate change, and more.27 In 

addition, 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, such as 

endangered species consultation or 

impacts to Federal lands and waters 

from federally authorized activities. 

CEQ relied on this body of experience 

and expertise in developing this final 

rule. As discussed in detail in the 

following sections, CEQ is generally 

reverting to the approach in the 1978 

regulations for these three provisions 

with non-substantive changes to the 

1978 regulatory text to accommodate the 

current structure of the CEQ regulations. 

In doing so, CEQ intends for the Phase 

1 final rule provisions to have the same 

meaning as the corresponding 

provisions in the regulations in effect 

from 1978 to September 2020. 

A. Purpose and Need (§ 1502.13) 

i. Regulatory History and Proposed 

Changes 

The purpose and need section of an 

EIS identifies the agency’s purpose for 

the proposed action and the need it 

serves. Developing a statement of the 

purpose and need is a vital early step in 

the NEPA process that is foundational to 

other elements of an EIS. For example, 

the purpose and need statement informs 

the range of reasonable alternatives that 

the agency analyzes and considers. 

The 1978 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. 40 CFR 1502.13 (2019). The 2020 

regulations modified this requirement 

by adding specific language to address 

circumstances in which an agency’s 

‘‘statutory duty’’ is to consider an 

application for authorization, such as 

applications for permits or licenses. In 

those circumstances, the 2020 

regulations require agencies to base the 

purpose and need on the goals of an 

applicant and the agency’s authority. 

The 2020 rule added conforming 

language to a new definition of 

‘‘reasonable alternatives’’ in § 1508.1(z). 

Specifically, the 2020 regulations define 

‘‘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.’’ 28 In 

the NPRM for this rulemaking, CEQ 

proposed to revert to the language of the 

1978 regulations in § 1502.13 and make 

a conforming edit to the definition of 

‘‘reasonable alternatives’’ in § 1508.1(z) 

by deleting the reference to the goals of 

the applicant from the definition. 

ii. Summary of NPRM Comments on 

Purpose and Need 

CEQ received comments that both 

supported and opposed the proposed 

changes in the NPRM to §§ 1502.13 and 

1508.1(z). Some commenters supported 

the changes in the proposed rule, 

expressing the view that the changes 

would result in better decisions because 

agencies would consider a full range of 

alternatives and their effects without 

any arbitrary limitations tied to a project 

applicant or specific agency authorities. 

Commenters also expressed the view 

that the 2020 rule could be interpreted 

to allow or encourage agencies to 

prioritize an applicant’s goals over the 

needs and goals of the public or the 

agency’s own goals, and that the 

proposed rule would remedy these 

problems. Some commenters also 

specifically supported the retention of 

‘‘technically and economically feasible’’ 

in the definition of ‘‘reasonable 

alternatives,’’ stating this is in alignment 

with previous CEQ guidance on the 

1978 regulations. Many commenters 

agreed with CEQ’s statements in the 

NPRM that the purpose and need 

statement should reflect understanding 

of an agency’s statutory authority, the 

public interest, and an applicant’s goals 

but that these should be framed in the 

context of the general goal of an action 

and not through an evaluation of 

whether an applicant can reach its 

specific goals. Some comments also 

indicated that the reference to agency 

authority is redundant and supported 

the proposed removal of this reference 

to avoid unnecessary confusion. 

Other commenters opposed the 

proposed changes to §§ 1502.13 and 

1508.1(z), contending that the language 

adopted in the 2020 rule provides 

clarity that agencies must base the 

purpose and need on the applicant’s 

goals and agency’s statutory authority. 

Commenters also expressed the view 

that the 1978 regulation resulted in 

some Federal agencies prioritizing 

agency goals over the goals of the 

applicant, and therefore, that the 

proposed rule would have the same 

effect. They further argued that analyses 

considering alternatives that do not 

meet an applicant’s goals or that cannot 

be implemented by the applicant or 

agency are wasteful of both the 

applicant’s and the agency’s resources. 

Commenters also expressed the view 

that the proposed changes to purpose 

and need are not required by NEPA. For 

example, some commenters stated that 

there is no requirement to consider the 

public interest when developing a 

purpose and need statement for a nonFederal project. These commenters also 

objected to CEQ’s statements in the 

NPRM that the 2020 regulations could 

be interpreted to require that an 

applicant’s goals be the sole or primary 

factor for articulating purpose and need. 

These commenters contended that the 

2020 rule’s requirement that agencies 

consider alternatives that the applicant 

is capable of implementing does not 

foreclose consideration of potential 

environmental impacts or public 

interests. Further, these commenters 

stated that basing alternatives on the 

needs of an applicant does not 

unreasonably narrow the range of 

alternatives that an agency must 

consider because agencies still must 

consider the ‘‘no action alternative’’ and 

other reasonable alternatives that align 

with the goals of the applicant. Some 

commenters who supported retaining 

the reference to agency statutory 


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29See Forty Questions, 2A, supra note 28 (‘‘In 

determining the scope of alternatives to be 

considered, the emphasis is on what is ‘reasonable’ 

rather than on whether the proponent or applicant 

likes or is itself capable of carrying out a particular 

alternative. Reasonable alternatives include those 

that are practical or feasible from the technical and 

economic standpoint and using common sense, 

rather than simply desirable from the standpoint of 

the applicant.’’). See also Simmons v. U.S. Army 

Corps of Engineers, 120 F.3d 664, 669 (7th Cir. 

1997) (‘‘An agency cannot restrict its analysis to 

those ‘alternative means by which a particular 

applicant can reach his goals’. . . . The Corps has 

the ‘duty under NEPA to exercise a degree of 

skepticism in dealing with self-serving statements 

from a prime beneficiary of the project.’ ’’). 

authority agreed with CEQ that the 

language is confusing, but contended 

that CEQ should clarify it and that 

deleting the reference also will create 

confusion. 

The inconsistent interpretations of the 

language in 40 CFR 1502.13 (2020) 

expressed by commenters to the NPRM, 

as well as commenters on the 2020 rule, 

demonstrate the ambiguity of the 

language and underscore the need for 

clarification. Some commenters read the 

language in the 2020 rule to make the 

applicant’s goals and the agency’s 

statutory authority the sole factors an 

agency can consider in formulating a 

purpose and need statement when 

considering an application for 

authorization. Other commenters read 

the language as allowing agencies to 

consider other, unenumerated factors. 

These comments demonstrate the 

ambiguity of the 2020 text, which CEQ 

is clarifying in this final rule. 

CEQ specifically requested comment 

on the potential effects of the proposed 

changes to §§ 1502.13 and 1501.8(z) to 

the environmental review process, 

including timeframes for environmental 

review. In response, some commenters 

indicated they do not believe the 

proposed changes will affect the average 

timeline for the environmental review 

process. Other commenters stated that 

CEQ’s proposed revisions to purpose 

and need will lead to unnecessarily 

time-consuming and costly expansions 

of the consideration of alternatives by 

agencies with little focus on the 

project’s stated purpose. Some 

commenters expressed concern that the 

change to purpose and need would 

result in additional EISs as opposed to 

more efficient environmental 

assessments. CEQ did not receive any 

specific data or evidence from 

commenters that would address 

whether or not the proposed change 

would have an effect on the 

environmental review process, 

including timelines. 

iii. Rationale for Final Rule 

In the final rule, CEQ makes the 

changes as proposed. Specifically, the 

final rule amends the first sentence in 

§ 1502.13 to require an EIS to state the 

purpose and need to which the agency 

is responding in proposing alternatives, 

including the proposed action. The rule 

removes the second sentence requiring 

agencies base the purpose and need on 

the goals of the applicant and the 

agency’s authority when the agency is 

reviewing an application for 

authorization. Finally, the final rule 

removes the reference to the goals of the 

applicant from the definition of 

‘‘reasonable alternatives’’ in § 1508.1(z). 

CEQ makes these changes to address 

the ambiguity created by the 2020 rule 

language and ensure agencies have the 

flexibility to consider a variety of factors 

in developing the purpose and need 

statement and are not unnecessarily 

restricted by misconstruing this 

language to require agencies to prioritize 

an applicant’s goals over other 

potentially relevant factors, including 

effectively carrying out the agency’s 

policies and programs or the public 

interest. While CEQ does not interpret 

the 2020 rule language to require 

agencies to prioritize an applicant’s 

goals above or to the exclusion of other 

relevant factors, CEQ finds that 

removing the language on applications 

for authorization and restoring the 1978 

regulatory text is appropriate. The 

language of the 2020 rule could be 

misconstrued to inappropriately 

constrain the discretion of agencies in 

formulating a purpose and need 

statement, which would be inconsistent 

with fully informed decision making 

and sound environmental analysis. And 

even if interpreted to merely direct 

agencies to consider the applicant’s 

goals and the agency’s statutory 

authority alongside other relevant 

factors, CEQ deems it appropriate to 

strike the text because it is unnecessary 

and confusing. 

Consistent with longstanding practice 

and to ensure informed 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. 

Agencies have long considered myriad 

factors in developing a purpose and 

need statement. These include the 

agency’s mission and the specifics of the 

agency decision, including statutory and 

regulatory requirements. Factors also 

may include national, agency, or other 

policy objectives applicable to a 

proposed action, such as a discretionary 

grant program targeted to achieve 

certain policy goals; desired conditions 

on the landscape or other environmental 

outcomes; local needs; and an 

applicant’s goals. Additionally, when 

considering a project sponsored by an 

outside party, there may be actions by 

multiple Federal agencies for which the 

lead agency, in consultation with 

cooperating agencies, will need to craft 

the purpose and need statement in a 

manner to address all of the Federal 

agency actions (e.g., funding and 

permits) covered by the NEPA 

document. 

Finally, the goals of the applicant are 

an important, but not determinative, 

factor in developing a purpose and need 

statement for a variety of reasons, 

including helping to identify reasonable 

alternatives that are technically and 

economically feasible. Both the 

development of purpose and need 

statements and the identification of 

alternatives are governed by a rule of 

reason; the range of alternatives should 

be reasonable, practical, and not 

boundless. This approach is consistent 

with CEQ’s longstanding position as set 

forth in the Forty Questions issued 

shortly after the promulgation of the 

1978 regulations, where CEQ 

acknowledged that agencies must 

consider practicality and feasibility, 

without relying solely on the applicant’s 

preference for identifying what 

alternatives are reasonable.29

Additionally, removing this language 

does not foreclose an agency from 

considering the goals of the applicant. 

The final rule also removes the 

reference to the agency’s statutory 

authority from § 1502.13 because it is 

confusing and unnecessary. Federal 

agency discussions with CEQ and 

public comments, as reflected in both 

the 2020 Rule Response to Comments 

and the Phase 1 Response to Comments, 

demonstrate that some interpret this 

language to limit agencies’ discretion in 

developing the purpose and need 

statement. The implication that an 

agency’s authority is only relevant when 

the proposed action is for an 

authorization, such as a permit or 

license, is incorrect because an agency’s 

statutory authority for its action is 

always a relevant consideration for 

developing a purpose and need 

statement irrespective of whether the 

proposed action is an authorization. The 

2020 rule’s addition of the text also is 

confusing because it suggested that a 

change in practice was intended. In fact, 

agencies have always considered their 

statutory authority and the scope of the 

agency decision when developing 

purpose and need statements. In CEQ’s 

experience implementing the 1978 

regulations, there has been little or no 

confusion among the agencies regarding 

these issues; therefore, the additional 

language is unnecessary. Furthermore, 


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30A list of agency NEPA procedures is available 

at https://ceq.doe.gov/laws-regulations/agency_

implementing_procedures.html. No agency has 

updated its procedures to implement the 2020 

Continued 

for projects involving multiple agency 

actions under different statutory 

authorities, the lead agency should have 

flexibility in crafting a purpose and 

need statement to address multiple 

agency decisions both for efficiency and 

effective decision making. 

CEQ also makes these changes in the 

final rule because the language added by 

the 2020 rule may be interpreted in a 

manner that does not lay the 

appropriate groundwork for 

environmentally sound decision making 

when an agency considers a request for 

an authorization or reflect the best 

reading of the NEPA statute or case law. 

A properly drafted 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), 4332(2)(E). CEQ disagrees 

with commenters assertions that 

consideration of alternatives that do not 

meet an applicant’s goals or cannot be 

implemented by the applicant will 

always waste applicant or agency 

resources or result in delays. There may 

be times when an agency identifies a 

reasonable range of alternatives that 

includes alternatives—other than the no 

action alternative—that are beyond the 

goals of the applicant or outside the 

agency’s jurisdiction because the agency 

concludes that they are useful for the 

agency decision maker and the public to 

make an informed decision. 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 do not meet an 

applicant’s stated goals, but better meet 

the policies and requirements set forth 

in NEPA and the agency’s statutory 

authority and goals. The rule of reason 

continues to guide decision making in 

such contexts. 

CEQ’s concern that the 2020 

regulation’s change to § 1502.13 may be 

interpreted to unduly constrain the 

discretion of agencies leading to the 

development of unreasonably narrow 

purpose and need statements is 

consistent with a similar concern raised 

by the courts in reviewing agencies’ 

purpose and need statements under the 

1978 regulations. 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).’’ Simmons v. U.S. Army 

Corps of Engineers, 120 F.3d 664, 666 

(7th Cir. 1997) (citing 42 U.S.C. 

4332(2)(E)). 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)). 

Other court decisions have deferred to 

agencies’ purpose and need statements 

developed under the 1978 regulation 

that put weight on multiple factors 

rather than just an applicant’s goals, 

recognizing those factors as 

appropriately within the scope of the 

agency’s consideration. Citizens Against 

Burlington, Inc. v. Busey, 938 F.2d 190 

(D.C. Cir. 1991), which the 2020 final 

rule relied upon as the justification for 

language added to the purpose and need 

provision, is consistent with the 

language in the 1978 regulations that 

CEQ is restoring, and, in fact, 

interpreted and applied that language. 

In that case, in applying the traditional 

‘‘rule of reason,’’ the court held that the 

agency’s consideration of the applicant’s 

goals to develop the purpose and need 

of the action was reasonable. Id. at 196– 

99. However, the court did not require 

all agencies to make the applicant’s 

goals the sole (or even primary) factor in 

the formulation of the purpose and need 

in all factual and legal contexts. See id. 

Returning to the 1978 framework is 

consistent with case law affirming 

agency discretion to formulate purpose 

and need statements based on a variety 

of relevant factors. 

Removing the language regarding an 

applicant’s goals from § 1502.13 does 

not mean that an agency should 

consider a boundless set of alternatives. 

This final rule does not amend language 

in 40 CFR 1502.14 directing agencies to 

‘‘[e]valuate reasonable alternatives to 

the proposed action,’’ and § 1508.1(z), as 

amended in this final rule, continues to 

define ‘‘reasonable alternatives’’ as ‘‘a 

reasonable range of alternatives that are 

technically and economically feasible 

and meet the purpose and need for the 

proposed action.’’ The principle that the 

range of alternatives should be 

reasonably related to the purpose and 

need is well-settled. See Westlands 

Water Dist. v. U.S. Dep’t of the Interior, 

376 F.3d 853, 868 (9th Cir. 2004); 

Process Gas Consumers Grp. v. U.S. 

Dep’t of Agric., 694 F.2d 728, 769 (D.C. 

Circ. 1981). 

The final rule will reduce confusing 

and unnecessary text and align the 

regulations more closely to the purposes 

underlying NEPA. These changes 

reaffirm agency discretion to identify 

and consider the factors relevant to 

formulating statements of purpose and 

need in view of the specific 

circumstances before the agency and the 

agency’s responsibilities, including 

effectively carrying out agency policies 

and programs and considering the 

public interest and the goals of an 

applicant. CEQ disagrees with the 

assertions that returning or reaffirming 

agency discretion to consider multiple 

factors even where a private applicant is 

involved will result in significant 

additional burdens or negatively affect 

timelines. Agencies have significant 

experience under the 1978 regulations 

in considering a variety of factors when 

crafting purpose and need statements, 

including an applicant’s goals. 

Furthermore, CEQ did not receive any 

data, but only general and speculative 

statements, in response to its specific 

request for comment on potential effects 

of the proposed changes to §§ 1502.13 

and 1501.8(z) on the environmental 

review process, including timeframes 

for environmental review. CEQ notes 

that it is ultimately for the agency to 

determine what alternatives are needed 

to inform its decision making. Exploring 

and evaluating reasonable alternatives 

helps decision makers and the public 

examine other ways to meet the purpose 

and need of an action, including options 

with different environmental 

consequences or mitigation measures, 

and demonstrate to the public that the 

agency made an informed decision 

because it has explored such tradeoffs. 

CEQ also disagrees with the assertion 

that the changes to purpose and need in 

the final rule will directly result in an 

increase in the number of certain types 

of environmental review documents like 

EISs. Development of a purpose and 

need statement is separate from the 

assessment of whether a potential effect 

is significant, and therefore, whether an 

EIS is required. The changes made in 

the final rule will ensure agencies can 

make these determinations based on all 

relevant factors. 

B. Agency NEPA Procedures (§ 1507.3) 

i. Regulatory History and Proposed 

Changes 

The 1978 regulations required Federal 

agencies to develop NEPA procedures 

through a notice and comment process 

to integrate NEPA reviews into their 

decision-making processes. Over the 

40–year period that the 1978 regulations 

were in place, approximately 85 

agencies issued procedures to facilitate 

agency compliance with NEPA.30


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regulations and, as discussed above, CEQ 

promulgated an interim final rule to extend the 

deadline for agencies to propose updates. 

31Compare the U.S. Department of Agriculture’s 

procedures, 7 CFR part 1b, with NOAA 

Administrative Order 216–6A and Companion 

Manual, https://www.noaa.gov/nepa. 

32As noted in part I of the preamble, CEQ revised 

this time period from 12 months to 36 months in 

its interim final rule. See 86 FR 34154 (June 29, 

2021). 

33CEQ, Update to the Regulations Implementing 

the Procedural Provisions of the National 

Environmental Policy Act Final Rule Response to 

Comments, p. 436 (June 30, 2020), https://

www.regulations.gov/document/CEQ-2019-0003- 

720629. 

34 Id. 

Agencies have taken a wide range of 

approaches to their agency-specific 

NEPA procedures. Some have 

essentially incorporated the CEQ 

regulations by reference without much 

additional detail; others have issued 

procedures that tailor the NEPA process 

to the contexts in which they operate 

and integrate NEPA compliance with 

the agency’s other statutory 

responsibilities or environmental 

requirements.31 Consistent with 42 

U.S.C. 4332(2)(B) and 40 CFR 1507.3 

(2019), agencies consulted with CEQ in 

developing agency-specific procedures 

and CEQ determined that the 

procedures conformed with NEPA and 

the CEQ regulations before the agencies 

issued final procedures. 

The 2020 rule amended 40 CFR 

1507.3 to include ‘‘ceiling provisions’’ 

that made the CEQ regulations the 

maximum requirements agencies could 

include in their agency NEPA 

procedures. In adopting the ceiling 

provisions, the 2020 rule asserted that 

the ceiling provisions were intended to 

eliminate inconsistencies among 

agency-specific procedures and between 

agency procedures and the CEQ 

regulations by requiring that the 2020 

regulations apply where existing agency 

NEPA procedures are inconsistent with 

the CEQ regulations absent a clear and 

fundamental conflict with another 

statutory requirement. The 2020 rule 

also required agencies to propose new 

or revised procedures within 12 months 

to eliminate any inconsistencies and 

prohibited agencies from imposing 

procedures or requirements additional 

to the CEQ regulations unless those 

additional procedures promote agency 

efficiency or are required by law. 

In the Phase 1 NPRM, CEQ proposed 

to revise § 1507.3(a) and (b) to delete the 

ceiling provisions to provide 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. 

Specifically, the NPRM proposed to 

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 

NPRM did not propose to amend the 

determination made in the 2020 rule in 

§ 1507.3(a) that categorical exclusions 

established in agency NEPA procedures 

as of September 14, 2020, are consistent 

with the CEQ regulations. The NPRM 

also proposed to 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 promoted agency efficiency 

or were required by law. The NPRM did 

not propose to further amend the 

requirement for agencies to propose new 

or revised NEPA procedures within 36 

months, by September 14, 2023, as 

revised in the interim final rule,32 as 

well as the encouragement for major 

subunits of departments to adopt their 

own procedures with the consent of the 

department. 

ii. Summary of NPRM Comments on 

Agency NEPA Procedures 

Many commenters supported the 

proposed changes to § 1507.3, stating 

that the 2020 ceiling provisions were 

unnecessary and unhelpful because 

agencies should have flexibility to add 

additional requirements or detail to 

their NEPA procedures tailored to their 

unique needs and missions. 

Commenters also noted that the 

proposed change would assist agencies 

during the transition period before the 

completion of a Phase 2 rulemaking 

because it clarifies that agencies can and 

should continue to apply their existing 

NEPA procedures while CEQ finishes its 

review of the 2020 rule. They noted that 

without this change, agencies might be 

in the position of developing agency 

procedures that either conflict with 

NEPA or the 2020 regulations. Many 

commenters stated that the proposal 

would restore the ability of Federal 

agencies to develop agency-specific 

NEPA procedures to implement NEPA 

to the ‘‘fullest extent possible’’ 

consistent with 42 U.S.C. 4332. Some 

commenters who supported removing 

the ceiling provision noted that 

removing the provision may reduce, but 

will not eliminate, all of the harms of 

the 2020 rule because the 2020 rule is 

not being repealed. 

Other commenters opposed the 

proposed changes to § 1507.3 as 

unnecessary because the 2020 

regulations contain language allowing 

flexibility for agencies to tailor their 

NEPA procedures to improve efficiency. 

Some commenters also suggested that 

CEQ’s proposed changes invite agencies 

to disregard the 2020 rule. Commenters 

indicated that the NPRM’s proposed 

changes would result in inconsistencies 

and conflicts among agencies’ NEPA 

procedures, increased litigation, costs, 

delays, and paperwork, and impede the 

Administration’s goals. Commenters 

also requested that CEQ provide 

additional rationale and examples of 

agency confusion about the 2020 

regulations. 

Some commenters suggested 

additional changes CEQ should consider 

to § 1507.3, including to develop a 

framework for CEQ review of agency 

NEPA procedures to ensure agency 

discretion is not boundless; require 

agencies to affirm their procedures were 

reviewed for consistency by CEQ; and 

require that Federal agencies make 

revisions to their procedures only with 

public notice and comment. While such 

changes are beyond the scope of this 

rulemaking, CEQ notes that agencies 

cannot make changes to their NEPA 

procedures without consulting with 

CEQ, providing notice and comment, 

and receiving a determination from CEQ 

that the proposed changes are consistent 

with NEPA and the CEQ regulations. 

See 40 CFR 1507.3(b)(1)–(2). CEQ will 

consider the ideas included in these 

comments in the development of its 

Phase 2 rulemaking. 

iii. Rationale for Final Rule 

The 2020 final rule did not include a 

detailed rationale for adoption of the 

‘‘ceiling’’ provisions, although the 2020 

proposed rule stated that they were 

intended to ‘‘prevent agencies from 

designing additional procedures that 

will result in increased costs or delays.’’ 

(85 FR 1693). The 2020 Final Rule 

Response to Comments document also 

stated that ‘‘it is important that agencies 

do not revise their procedures in a way 

that will impede integration’’ with other 

environmental review requirements or 

‘‘otherwise result in heightened costs or 

delays.’’ 33 CEQ also asserted in the 2020 

Final Rule Response to Comments that 

it had the authority to place limits on 

agency procedures pursuant to 42 U.S.C. 

4344(3) and E.O. 11991.34

CEQ has reexamined the rationales 

provided for the 2020 rule and the 


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35H. Rep. No. 91–765, at 9–10 (1969). 

comments received on the Phase 1 

NPRM and determined that finalizing 

the changes as proposed in the Phase 1 

NPRM is appropriate. Doing so clarifies 

that agencies can and should continue 

to apply their existing NEPA 

procedures, consistent with the CEQ 

regulations in effect, while CEQ 

completes its review of and revisions to 

the 2020 regulations in its Phase 2 

rulemaking. The final rule makes clear 

that agencies have this discretion by 

removing the ceiling provisions. The 

removal of the ceiling provisions allows 

agencies to exercise their discretion to 

develop and implement procedures 

beyond the CEQ regulatory 

requirements; however, agency 

procedures cannot conflict with current 

CEQ regulations. More generally and as 

discussed further below, these changes 

to § 1507.3 will promote better 

decisions, improve environmental and 

community outcomes, and spur 

innovation that advances NEPA’s goals 

by giving agencies the flexibility to 

follow their existing procedures or 

develop new or revised NEPA 

procedures that best meet the agencies’ 

statutory missions and enable 

integration of environmental 

considerations in their decision making 

in a flexible manner. Giving agencies 

the flexibility to innovate should 

increase the likelihood that agencies 

identify process improvements and 

efficiencies that benefit Federal agencies 

as well as project sponsors and other 

stakeholders, including the public. CEQ 

disagrees with the 2020 rule’s assertions 

and some NPRM commenters’ 

contentions that this change will result 

in increased costs and delays due to 

conflicts among agency NEPA 

procedures or between agency NEPA 

procedures and the CEQ regulations. A 

primary purpose of the longstanding 

process by which CEQ engages with 

agencies in the development of their 

NEPA procedures is to identify and 

resolve potential conflicts and ensure 

that agency-specific procedures conform 

with the CEQ regulations. Furthermore, 

the public has an opportunity to provide 

public comments on proposed agency 

NEPA procedures before they are 

finalized. These processes facilitate 

identification of potential conflicts, 

costs, or delays and give agencies 

opportunities to balance various policy 

and process considerations before 

establishing or changing their 

procedures. 

The final rule’s changes to § 1507.3 

also will better achieve NEPA’s 

objectives and statutory requirements. 

First, while CEQ is responsible for 

interpreting and overseeing NEPA 

implementation, all agencies are 

charged with administering the statute’s 

requirements. See 42 U.S.C. 4332. NEPA 

expressly instructs agencies to develop 

methods and procedures in consultation 

with CEQ to ensure consideration of 

‘‘environmental amenities and values’’ 

in decision making. See 42 U.S.C. 

4332(2)(B). NEPA and the CEQ 

regulations, see 40 CFR 1507.3, call for 

agencies to take responsibility for their 

own procedures, even while consulting 

with 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. Furthermore, 

CEQ plays a critical role in reviewing 

and determining that an agency’s NEPA 

procedures comply with NEPA and the 

CEQ regulations, which ensures that 

agency procedures integrate the NEPA 

process with agency decision making so 

that the public and decision makers are 

informed of the environmental 

consequences of agency decisions. See 

40 CFR 1507.3(b), (e). 

Second, removing these ceiling 

provisions 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 

narrow construction of its existing 

statutory authorizations to avoid 

compliance.’’ 35This final rule provides 

agencies the flexibility to comply with 

NEPA, including by allowing agencies 

to adopt agency-specific NEPA 

procedures that align with their unique 

missions, circumstances, and statutory 

mandates. 

Agencies may more fully pursue 

NEPA’s twin aims to consider 

environmental effects and inform the 

public by establishing procedures that 

provide for additional environmental 

review and public participation or 

evaluation of certain issues such as air 

and water quality impacts, 

environmental justice considerations, or 

habitat effects. See 42 U.S.C. 4332. 

Agency procedures could include more 

specific requirements for the 

development of environmental 

assessments to facilitate the decisionmaking process, such as requiring 

multiple alternatives or documentation 

of alternatives considered but 

dismissed. 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. Removing the 

ceiling provision allows agencies to 

include such specificity, which can help 

lead to more effective reviews and 

provide efficiencies by fostering better 

integration of NEPA with other statutory 

requirements. 

Third, upon further consideration, 

CEQ no longer agrees with the 

assertions in the 2020 Final Rule 

Response to Comments that setting the 

CEQ regulations as the ceiling puts 

agencies in the best position to reduce 

costs and delays in NEPA 

implementation, or that doing so will 

promote integration of NEPA and 

compliance with other environmental 

review requirements. The 2020 rule did 

not provide any support for the 

assertion that these changes would 

achieve those goals. It also did not 

explain why the process laid out in 

§ 1507.3—requiring agencies to 

collaborate with CEQ on the 

development of their NEPA procedures, 

seek public comment on proposed 

procedures, and obtain CEQ conformity 

determinations—does not sufficiently 

advance the goal of ensuring an efficient 

and effective NEPA review. CEQ has 

reconsidered the ceiling provisions in 

light of this longstanding process, CEQ’s 

experience implementing it, and the 

comments CEQ received on the 

proposed rule, and determined that the 

ceiling provisions create unnecessary 

rigidity in light of other mechanisms to 

promote consistency and coordination, 

and reduce costs and delays. CEQ also 

finds that the processes included in the 

1978 regulations effectively promoted 

the integration of NEPA and other 

environmental reviews. See 40 CFR 

1502.25 (2019). CEQ’s review of agency 

procedures allows CEQ and the agency 

to discuss the rationale for any new or 

additional procedures or requirements 

proposed by agencies, and allows CEQ 

to promote consistency across the 

Federal Government, as appropriate, 

without limiting agencies’ flexibility to 

do more than the CEQ regulations 

describe or otherwise inhibit 

innovation, including innovation and 


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flexibilities that can improve agency 

efficiency. 

iv. Deadline Extension 

As explained in section I.D, CEQ 

issued an interim final rule in June 2021 

that extended by 2 years—to September 

14, 2023—the deadline in 40 CFR 

1507.3(b) for agencies to propose 

changes to their existing agency-specific 

NEPA procedures to make them 

consistent with the current CEQ 

regulations. The interim final rule 

explained that the extension would 

avoid agencies having to propose 

changes to their implementing 

procedures on a tight deadline to 

conform to regulations that are 

undergoing extensive review and will 

likely change in the near future. 

The Administrative Procedure Act did 

not require CEQ to provide notice and 

an opportunity for public comment 

prior to extending the deadline. See, 

e.g., 86 FR 34156. Nevertheless, CEQ 

requested comments on the interim final 

rule and received approximately 20 

written submissions. CEQ has provided 

summaries and responses to these 

comments in the response to comments 

document posted to the docket for this 

rulemaking. For the reasons set forth in 

the interim final rule and the response 

to comment document, and having now 

considered public comments, CEQ is 

finalizing in this rule the deadline 

extension originally made effective in 

the interim final rule. 

C. Definition of ‘‘Effects’’ or ‘‘Impacts’’ 

(§ 1508.1(g)) 

i. Regulatory History and Proposed 

Changes 

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). The 1978 regulations 

defined ‘‘effects’’ to include ‘‘direct 

effects’’ and ‘‘indirect effects’’ and 

separately defined ‘‘cumulative 

impact.’’ See 40 CFR 1508.7, 1508.8 

(2019). Section 1508.8(a) of the 1978 

regulations defined ‘‘direct effects’’ as 

effects ‘‘caused by the action and occur 

at the same time and place.’’ Section 

1508.8(b) of the 1978 regulations 

defined ‘‘indirect effects’’ as effects 

‘‘caused by the action and are later in 

time or farther removed in distance, but 

are still reasonably foreseeable.’’ Section 

1508.8 of the 1978 regulations also 

provided examples of indirect effects 

and effects generally, and noted that the 

terms ‘‘effects’’ and ‘‘impacts’’ as used 

in the regulations were synonymous. 

The 1978 regulations defined 

‘‘cumulative impact’’ as ‘‘the impact on 

the environment which results from the 

incremental impact of the action when 

added to other past, present, and 

reasonably foreseeable future actions 

regardless of what agency (Federal or 

non-Federal) or person undertakes such 

other actions.’’ Id. § 1508.7. The 

definition also stated that cumulative 

impacts ‘‘can result from individually 

minor but collectively significant 

actions taking place over a period of 

time.’’ Id. 

The 2020 rule made several major 

changes to these definitions. The 2020 

rule provided a single definition for 

‘‘effects’’ or ‘‘impacts,’’ deleting the 

subcategorization of ‘‘direct’’ and 

‘‘indirect’’ effects and the definition of 

‘‘cumulative impacts.’’ The definition 

includes introductory text followed by 

three paragraphs designated (g)(1) 

through (3). The first clause of the 

introductory text provides that ‘‘[e]ffects 

or impacts means changes to the human 

environment from the proposed action 

or alternatives that are reasonably 

foreseeable and have a reasonably close 

causal relationship to the proposed 

action or alternatives.’’ The second 

clause provides that the definition of 

‘‘effects’’ or ‘‘impacts’’ includes ‘‘those 

effects that occur at the same time and 

place as the proposed action or 

alternatives and may include effects that 

are later in time or farther removed in 

distance from the proposed action or 

alternatives.’’ The phrase ‘‘those effects 

that occur at the same time and place as 

the proposed action or alternatives,’’ is 

drawn verbatim from the description of 

direct effects in the 1978 regulations’ 

definition of effects. The clause ‘‘may 

include effects that are later in time or 

farther removed in distance,’’ is a 

modified version of the language 

describing indirect effects in the 1978 

regulations’ definition of effects; the 

2020 rule qualified this description by 

adding ‘‘may include.’’ 40 CFR 1508.1(g) 

(2020) (emphasis added). 

Following the introductory text, 

paragraph (g)(1) includes language 

identifying examples of effects, which is 

modified from the last paragraph of the 

1978 definition of ‘‘effects.’’ Paragraph 

(g)(2) includes new text providing that 

a ‘‘‘but for’ causal relationship is 

insufficient to make an agency 

responsible for a particular effect under 

NEPA’’ and that agencies generally 

should not consider effects ‘‘if they are 

remote in time, geographically remote, 

or the product of a lengthy causal 

chain.’’ This paragraph also explicitly 

excludes ‘‘effects that the agency has no 

ability to prevent due to its limited 

statutory authority or would occur 

regardless of the proposed action.’’ 

Paragraph (g)(3) requires an agency’s 

analysis of effects to be consistent with 

the definition of ‘‘effects’’ and explicitly 

repeals the definition of cumulative 

impact. 

In the NPRM, CEQ proposed to revise 

the definition of ‘‘effects’’ or ‘‘impacts’’ 

in § 1508.1(g) to restore the substance of 

the definitions of ‘‘effects’’ and 

‘‘cumulative impact’’ contained in the 

1978 regulations. The NPRM also 

proposed to continue to provide one 

combined definition for the two terms, 

rather than reinstating separate 

definitions for ‘‘effects’’ and 

‘‘cumulative impacts’’ as existed in the 

1978 regulations, because separate 

definitions are unnecessary as reflected 

in the 1978 regulation’s statement that 

the terms ‘‘impacts’’ and ‘‘effects’’ were 

synonymous. 

The NPRM proposed the following 

specific amendments to § 1508.1(g). 

First the NPRM proposed to revise the 

introductory paragraph in § 1508.1(g) 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’’ as described in 

§ 1508.1(g)(1) through (3), and remove 

the phrase ‘‘that are reasonably 

foreseeable and have a reasonably close 

causal relationship.’’ 

Second, the NPRM proposed to revise 

each of the paragraphs (g)(1) through (3) 

and add a fourth paragraph (g)(4). 

Proposed paragraphs (g)(1) through (3) 

describe ‘‘direct effects,’’ ‘‘indirect 

effects,’’ and ‘‘cumulative effects,’’ and 

proposed paragraph (g)(4) provides a list 

of examples of effects similar to 

paragraph (g)(1) of the 2020 regulation. 

The NPRM proposed to move text 

included in the introductory paragraph 

of the 2020 regulations, but which 

originated in the 1978 regulations, into 

the relevant paragraphs. Specifically, 

the phrase ‘‘effects that occur at the 

same time and place’’ would be moved 

to the description of direct effects in 

paragraph (g)(1), and the phrase ‘‘effects 

that are later in time or farther removed 

in distance’’ would be moved to the 

description of indirect effects in 

paragraph (g)(2). The definition of 

cumulative effects in paragraph (g)(3) is 

made up of the language defining 

‘‘cumulative impact’’ in the 1978 

regulations with non-substantive edits 

for consistency with the current 

regulations. Paragraph (g)(4) includes 

proposed amended text from paragraph 

(g)(1) of the 2020 regulation providing a 

list of examples of effects. In paragraph 

(g)(4), the NPRM proposed to restore the 

language of the 1978 regulations and 


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36For example, CEQ’s NEPA.gov website 

provides a list of greenhouse gas (GHG) accounting 

tools, https://ceq.doe.gov/guidance/ghg-accountingtools.html, and the Environmental Protection 

Agency’s (EPA’s) NEPAssist tool, https://

www.epa.gov/nepa/nepassist, a web-based 

application that draws environmental data 

dynamically from EPA’s Geographic Information 

System databases and web services and provides 

immediate screening of environmental assessment 

indicators for a user-defined area of interest. 

delete minor and non-substantive 

modifications made in the 2020 rule. 

Following the proposed amendments, 

the text in paragraph (g)(4) would be 

identical to the final sentence of the 

effects definition in the 1978 regulation. 

Third, the NPRM proposed to delete 

in its entirety the text included in 

paragraph (g)(2) of the 2020 regulations, 

which states that a ‘‘but for’’ causal 

relationship is insufficient to make an 

agency responsible for a particular effect 

under NEPA; generally excludes from 

the definition of ‘‘effects’’ those 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 that 

would occur regardless of the proposed 

action. 

Fourth, the NPRM proposed to delete 

in its entirety the text included in 

paragraph (g)(3) of the 2020 regulations, 

which requires agencies to analyze 

effects consistent with the definition of 

‘‘effects’’ and explicitly repeals the 

definition of ‘‘cumulative impact’’ from 

the 1978 regulations. 

Finally, CEQ notes that the NPRM did 

not propose to include in the definition 

of ‘‘effects’’ or ‘‘impacts’’ the statement 

in the 1978 regulations’ definition of 

‘‘effects’’ that ‘‘[e]ffects and impacts as 

used in these regulations are 

synonymous.’’ See 40 CFR 1508.8(b) 

(2019). Because the NPRM proposed to 

continue to provide a single definition 

for ‘‘effects’’ or ‘‘impacts,’’ including 

that statement would be unnecessary 

and redundant. 

ii. Summary of NPRM Comments on the 

Definition of ‘‘Effects’’ 

General Comments 

CEQ received numerous comments on 

the proposed changes to § 1508.1(g), 

both expressing support for and 

opposition to the proposed changes. 

Many commenters supported the 

proposed revisions and restoring the 

concepts of direct, indirect, and 

cumulative effects or impacts to the 

regulations. Commenters expressed 

support for the proposed changes for a 

variety of reasons, including because the 

proposed changes better reflect NEPA 

principles and case law; help ensure the 

proper scope of analysis that NEPA 

requires, including analysis of effects on 

climate change, communities with 

environmental justice concerns, and 

wildlife; and provide clarity and 

consistency for the environmental 

review process. Many of these 

commenters identified the changes to 

the definitions of effects and impacts as 

the most damaging changes put in place 

by the 2020 rule. Some commenters 

specifically pointed to the importance of 

considering indirect and cumulative 

effects for addressing environmental 

justice concerns and climate change in 

environmental reviews, consistent with 

E.O. 13990 and the Administration’s 

priority to assess and mitigate climate 

pollution. Commenters also contended 

that central to an agency considering 

whether an action will cause or 

contribute to undue burdens to a 

community is a review of cumulative 

impacts resulting from past, present, 

and reasonably foreseeable future 

actions and effects in a project area, 

including the impacts of climate change. 

Other commenters raised concerns 

about the 2020 rule’s removal of 

language on direct, indirect, and 

cumulative effects and impacts and 

emphasized the importance of 

considering these categories of effects 

on wildlife and other natural resources. 

Some commenters agreed with the 

NPRM that the proposed changes will 

provide clarity to agencies, 

practitioners, and the public by helping 

agencies and the public evaluate and 

understand the full scope of reasonably 

foreseeable effects in NEPA reviews. 

CEQ also received multiple comments 

expressing overall opposition to the 

proposed changes. Some commenters 

raised concerns that restoring the 

approach to impacts and effects in the 

1978 regulations would lead to wider 

and more complex analysis in the NEPA 

process, require evaluation of impacts 

that are outside the scope of the 

decision, and go beyond the intent of 

the statute. These commenters stated 

that the proposed changes to the 

definition of effects will not improve 

NEPA compliance or agency certainty. 

Some commenters expressed the view 

that the proposed changes will result in 

undue burden on agencies, increased 

costs and litigation, and lengthier 

review times. Some commenters 

indicated that if CEQ restores the 

definition of effects in the final rule 

then the definition should include 

sideboards or other bounding criteria to 

prevent misuse, unnecessary delays, 

and increased costs. These commenters 

contended that requiring agencies to 

expend time and resources on analyzing 

and disclosing speculative effects adds 

time and cost to the NEPA process 

without providing value to decision 

makers or the public. Some commenters 

expressed concern specifically about the 

proposed rule’s potential to delay 

critical infrastructure projects. 

As discussed further in section II.C.iii 

and in the Phase 1 Response to 

Comments, CEQ has considered the 

comments in support of and opposed to 

the changes to the definition of ‘‘effects’’ 

in the proposed rule. With respect to the 

potential impacts to NEPA review 

timelines, CEQ is not aware of—and 

commenters did not provide—data 

supporting the claim that evaluation of 

direct, indirect, and cumulative effects 

necessarily leads to longer timelines, 

especially given the long history of 

agency and practitioner experience with 

analyzing these categories of impacts 

and effects under the 1978 regulations, 

as well as modern techniques leveraging 

science and technology to make 

environmental reviews comprehensive 

yet efficient.36 CEQ considers the 

importance of clear and robust analysis 

of effects to informed agency decision 

making to outweigh the speculative 

potential for shorter NEPA documents 

or timeframes. 

Furthermore, the deletion of the 

definition of ‘‘cumulative impacts’’ in 

the 2020 rule did not absolve agencies 

from evaluating reasonably foreseeable 

cumulative effects, and therefore, it is 

unclear that the deletion would narrow 

the scope of effects analyzed by 

agencies. Numerous commenters on the 

NPRM noted that the 2020 rule’s 

changes to the definition of ‘‘effects’’ 

created uncertainty and confusion in 

agencies implementing NEPA. CEQ 

expects that substantively restoring 

these definitions, which were in place 

and in use for decades, will better 

clarify the effects agencies need to 

consider in their NEPA analyses and 

could help avoid delays or deficiencies 

in NEPA reviews caused by agency 

uncertainty over the proper scope of 

effects analysis. Furthermore, 

conducting a robust consideration of all 

reasonably foreseeable effects of a 

proposed action is not a delay; rather, 

doing so constitutes sound decision 

making and fulfills NEPA’s statutory 

mandate. See 42 U.S.C. 4332. Therefore, 

based on CEQ’s experience and 

expertise, this final rule strikes the 

proper balance of promoting informed 

decision making and completing 

environmental reviews expeditiously. 

CEQ also considered comments 

regarding the potential for increased 

litigation. Both commenters in favor of 

and opposed to the NPRM’s proposal to 

restore language from the 1978 

regulations on direct, indirect, and 


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37See also CEQ’s 1970 interim guidelines, 

interpreting 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.’’ 35 FR 

7390, 7392 (May 12, 1970) (emphasis added). 

cumulative effects raised concerns over 

increased litigation. CEQ considers the 

effect of the proposed changes on 

litigation to be difficult to predict, and 

therefore not a useful factor in 

determining the approach for this final 

rule. 

Consistency With the NEPA Statute 

Some commenters stated that Federal 

agencies have a statutory obligation to 

assess all of the relevant environmental 

effects of their proposed actions and 

argue that restoring the 1978 definition 

of ‘‘effects’’ would align the regulations 

with longstanding agency practice and 

judicial precedent. Commenters 

expressed the view that NEPA’s plain 

language requires Federal agencies to 

address impacts to future as well as 

present generations, that this statutory 

mandate cannot be met without 

analyzing cumulative and indirect 

effects, and that courts have consistently 

affirmed this legal obligation. Other 

commenters stated that the changes to 

the definition of effects and impacts 

made by the 2020 rule are at odds with 

the statute’s plain language, clear 

congressional intent, and decades of 

legal precedent and have created 

confusion and uncertainty. 

Other commenters objected to the 

proposed rule contending that because 

NEPA does not include the terms 

‘‘direct,’’ ‘‘indirect,’’ or ‘‘cumulative’’ 

effects, including those terms in the 

regulations is contrary to the plain 

language of the statute. Commenters 

also contended that the 2020 rule’s 

elimination of those terms and 

replacement with a simplified definition 

of ‘‘effects’’ focused on reasonable 

foreseeability is in better alignment with 

NEPA’s statutory language, the goals of 

the statute, and case law. 

The restoration of direct, indirect, and 

cumulative effects as part of the 

definition of ‘‘effects’’ better reflects 

NEPA’s statutory purpose, policy, and 

intent and is more consistent with the 

case law interpreting NEPA’s 

requirements. NEPA sets forth a policy 

to encourage productive and enjoyable 

harmony between humans and their 

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. Accordingly, the U.S. 

Supreme Court has stated that NEPA 

promotes a ‘‘sweeping commitment to 

‘prevent or eliminate damage to the 

environment and biosphere’ by focusing 

Government and public attention on the 

environmental effects of proposed 

agency action.’’ Marsh v. Oregon 

Natural Resources Council, 490 U.S. 

360, 371 (1989) (citing 42 U.S.C. 4321). 

The Court explained that NEPA requires 

agencies to take a ‘‘hard look’’ at the 

environmental effects of their planned 

actions, including indirect effects 

relevant to the dam project at issue in 

the case, such as potential changes in 

downstream water temperature that 

could reduce species survival. Id. at 

374, 385. 

Similarly, courts have long applied 

the concept of cumulative impacts or 

effects as identified in the 1978 

regulations to NEPA analysis. See, e.g., 

NRDC v. Hodel, 865 F.2d 288, 297–98 

(D.C. Cir. 1988) (stating, ‘‘NEPA, as 

interpreted by the courts, and CEQ 

regulations both require agencies to 

consider the cumulative impacts of 

proposed actions,’’ and holding that 

NEPA required the Secretary of the 

Interior to consider the cumulative 

impacts of offshore development in 

different areas of the Outer Continental 

Shelf). Even before CEQ issued 

regulations defining ‘‘effects’’ to include 

cumulative effects, the U.S. Supreme 

Court had interpreted NEPA to require 

consideration of ‘‘cumulative or 

synergistic environmental impact.’’ 

Kleppe v. Sierra Club, 427 U.S. 390, 410 

(1976). Although this case focuses on 

programmatic review, the Court 

recognized the importance of 

considering the collective 

environmental effects of agency actions 

to inform the decision-making process. 

Id. (‘‘Only through comprehensive 

consideration of pending proposals can 

the agency evaluate different courses of 

action.’’).37

Comments on Department of 

Transportation v. Public Citizen 

Some commenters agreed with CEQ’s 

statements in the NPRM about 

Department of Transportation v. Public 

Citizen, 541 U.S. 752 (2004), contending 

that the 2020 rule’s interpretation of the 

decision to justify limits on effects 

analysis was incorrect and that the 

changes in the Phase 1 proposed rule 

align with the Supreme Court’s 

decision. Commenters also expressed 

the view that the 2020 rule’s reliance on 

or interpretation of Public Citizen to 

impose a categorical limitation on the 

scope of effects that agencies may 

permissibly analyze was fundamentally 

misguided because the decision 

identified the effects that an agency 

must consider, but did not limit the 

effects that an agency may consider. 

Commenters also expressed the view 

that the holding in Public Citizen is 

limited to the narrow circumstance in 

which an agency has no discretion to 

alter the activity that causes the effects 

in question. Additional commenters 

contended that if the Court intended to 

exclude cumulative effects or impacts 

from environmental review, the Court 

would have clearly said so. Based on 

these interpretations of Public Citizen, 

these commenters generally supported 

the NPRM’s proposed definition of 

effects and requested that CEQ clarify 

that the case applies only in limited 

circumstances. 

Commenters who disagreed with the 

NPRM’s interpretation of Public Citizen 

contended that the Court stated clearly 

that NEPA requires a reasonably close 

causal relationship between the 

environmental effect and alleged cause 

and that a ‘‘but for’’ causal relationship 

is insufficient to make an agency 

responsible for a particular effect under 

NEPA. Commenters also argued that the 

2020 rule aligned with Public Citizen, 

because the Court held that 

consideration of actions beyond an 

agency’s statutory authority serves no 

purpose and fails to satisfy NEPA’s rule 

of reason. Commenters also asserted that 

the NPRM did not adequately explain 

CEQ’s change in interpretation of Public 

Citizen in light of the 2020 rule’s heavy 

reliance upon it. 

CEQ has reexamined its interpretation 

of and reliance on the Public Citizen 

decision in the 2020 rule. The 2020 rule 

relied upon the decision to provide a 

broadly applicable statement on effects 

analysis that is not compelled by the 

opinion itself and that does not comport 

with CEQ’s view of the proper scope of 

effects analysis in line with NEPA’s 

informational purpose and longstanding 

agency practice and discretion. At issue 

in Public Citizen was whether the 

Federal Motor Carrier Safety 

Administration (FMCSA) had 

appropriately excluded from its NEPA 

analysis effects from Mexican trucks 

entering the United States that would 

occur if the President followed through 

on his intention to lift a moratorium on 

those trucks following FMCSA 

promulgating vehicle safety regulations. 

The Supreme Court explained that 

NEPA and the 1978 regulations are 

governed by a ‘‘rule of reason.’’ Id. at 

767. FMCSA had no ability to deny 

certification if trucks met minimum 

requirements, and as a result, the 

Supreme Court held that FMCSA had 


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38 85 FR 43304 (July 16, 2020). 

lawfully defined the scope of its 

analysis, and that it was not arbitrary 

and capricious for FMCSA to exclude 

from its NEPA analysis effects that 

would occur if the President lifted the 

moratorium. Id. at 758–59. 

In reaching that conclusion, the Court 

rejected application of ‘‘a particularly 

unyielding variation of ‘but for’ 

causation, where an agency’s action is 

considered a cause of an environmental 

effect even when the agency has no 

authority to prevent the effect.’’ Id. at 

767. The Court stated that ‘‘NEPA 

requires ‘a reasonably close causal 

relationship’ between the environmental 

effect and the alleged cause.’’ Id. And 

then it explained that ‘‘inherent in 

NEPA and its implementing regulations 

is a ‘rule of reason,’ which ensures that 

agencies determine whether and to what 

extent to prepare an EIS based on the 

usefulness of any new potential 

information to the decisionmaking 

process.’’ Id. It further explained that ‘‘it 

would . . . not satisfy NEPA’s ‘rule of 

reason’ to require an agency to prepare 

a full EIS due to the environmental 

impact of an action it could not refuse 

to perform. Put another way, the legally 

relevant cause of the entry of the 

Mexican trucks is not FMCSA’s action, 

but instead the actions of the President 

in lifting the moratorium and those of 

Congress in granting the President this 

authority while simultaneously limiting 

FMCSA’s discretion.’’ Id. at 769. 

The 2020 rule quoted the Court’s 

statement on ‘‘but for’’ causation as a 

categorical limitation on effects analysis 

without recognizing the factual and 

legal context in which the statement 

was made, including the statements that 

immediately surrounded it. In fact, the 

Court tied its analysis of ‘‘but for’’ 

causation to a ‘‘critical feature’’ of the 

case—that FMCSA had no statutory 

authority to stop the process by which 

the trucks would operate. The Court 

explained that requiring FMCSA to 

consider the environmental impacts of 

those operations as effects of its action 

would violate the ‘‘rule of reason,’’ 

because the consideration would not 

fulfill NEPA’s purpose of informing the 

decision maker. See id. at 768–69. 

Moreover, the Court affirmed FMCSA’s 

consideration of effects under the 1978 

regulations. See id. at 770. The Court 

did not hold that agencies may not 

consider a broader range of effects in 

other circumstances. The Court’s focus 

was on situations ‘‘where an agency has 

no ability to prevent a certain effect due 

to its limited statutory authority.’’ Id. 

The 2020 rule could be read to apply 

universally the proximate causation 

principle of tort law when determining 

the scope of their NEPA analyses. This 

result is not compelled by the Public 

Citizen decision and is in significant 

tension with the Supreme Court’s 

recognition that tort law and NEPA are 

governed by different principles that 

serve different policy objectives. See 

Metro. Edison Co. v. People Against 

Nuclear Energy, 460 U.S. 766, 775, FN 

7 (1983). 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. 

For these reasons, CEQ has 

reconsidered its reasoning and approach 

taken in the 2020 rule and does not 

deem it useful to include the 

‘‘reasonably close causal relationship’’ 

and ‘‘but for’’ language drawn from 

Public Citizen, which dealt with a 

unique context in which an agency had 

no authority to direct or alter an 

outcome, in the broadly applicable 

NEPA regulations. Doing so 

inappropriately transforms a Court 

holding affirming an agency’s exercise 

of discretion in a particular factual and 

legal context into a rule that could be 

read to limit agency discretion. Instead, 

as further discussed below, agencies are 

better guided by the longstanding 

principle of reasonable foreseeability 

and the rule of reason in implementing 

NEPA’s directives. 

Comments on Reasonably Foreseeable 

and Reasonably Close Causal 

Relationship 

Some commenters supported the 

removal of the 2020 language 

contending that it limits effects analysis 

to effects that are ‘‘reasonably 

foreseeable and have a reasonably close 

causal relationship’’ and because 

consequential reasonably foreseeable 

environmental effects may occur remote 

in time or place from the original action 

or be the product of a causal chain; for 

example, 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. 

As such, these commenters stated that 

restoring the definition of effects to the 

1978 regulations would provide for 

more sound decision making. 

Commenters also stated that the 2020 

regulations’ definition of ‘‘effects’’ 

requiring a close causal relationship 

potentially narrowed and improperly 

limited the scope of effects agencies 

would consider for proposed Federal 

actions. Commenters specifically 

pointed to the ‘‘but for’’ language in the 

2020 regulations as adding uncertainty 

and noted that, under the 1978 

regulations, agencies shared an 

understanding of how to assess the 

effects of a proposed action based on 

agency procedures and case law. 

On the other hand, commenters 

opposing changes to the 2020 rule’s 

definition of ‘‘effects’’ argued that 

limiting the NEPA analysis to those 

effects that are reasonably foreseeable 

and have a reasonably close causal 

relationship to the proposed action is in 

line with common sense and 

jurisprudence. Others emphasized that 

the 2020 definition reasonably limits the 

scope of potential effects analysis and 

prevents reviews from considering 

impacts that bear little or no 

relationship to the proposed action, and 

therefore improves clarity and relevance 

of NEPA documents. These commenters 

asserted that the 2020 rule’s addition of 

‘‘reasonably foreseeable and reasonably 

close causal relationship’’ made a 

practical clarification that may reduce 

unnecessary analysis and inefficiencies. 

Other commenters suggested that, if 

CEQ reintroduces direct, indirect, and 

cumulative effects, the rule should 

clarify that these effects are limited to 

those that are ‘‘reasonably foreseeable.’’ 

CEQ has reexamined the phrase 

‘‘reasonably close causal relationship,’’ 

which the 2020 rule added to the 

definition of ‘‘effects’’ in part on the 

basis that consideration of effects 

should be limited by proximate cause 

principles from tort law.38 CEQ now 

considers this phrase unnecessary and 

unhelpful because an agency’s ability to 

exclude effects too attenuated from its 

actions is adequately addressed by the 

longstanding principle of reasonable 

foreseeability that has guided NEPA 

analysis for decades. See Robertson v. 

Methow Valley Citizens Council, 490 

U.S. 332, 356 (1989). See also Sierra 

Club v. FERC, 867 F.3d 1357, 1371 (D.C. 

Cir. 2017) (citing EarthReports, Inc. v. 

FERC, 828 F.3d 949, 955 (D.C. Cir. 

2016)). Furthermore, CEQ no longer 

deems it necessary to import principles 

of tort law into the NEPA regulations. 

Environmental review under NEPA 

serves different purposes, such as 

guiding sound agency decision making 

and future planning, that may 

reasonably entail a different scope of 

effects analysis than the distinct tort law 

context. See Metro. Edison Co., 460 U.S. 

at 775, FN 7 (1983) (‘‘[W]e do not mean 

to suggest that any cause-effect relation 

too attenuated to merit damages in a tort 

suit would also be too attenuated to 

merit notice in an EIS; nor do we mean 

to suggest the converse. In the context 

of both tort law and NEPA, courts must 

look to the underlying policies or 

legislative intent in order to draw a 

manageable line between those causal 


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39Supra note 19. 

40Supra note 22. 

41 In responding to comments about potential 

effects on threatened and endangered species, the 

preamble to the 2020 rule explained that ‘‘the final 

rule does not ignore cumulative effects on listed 

species.’’ 85 FR 43304 (July 16, 2020). Similarly, the 

2020 Final Rule Response to Comments stated that 

changes that may make an actor 

responsible for an effect and those that 

do not.’’). Keeping the 2020 limitation 

also would suggest that agency NEPA 

practitioners are required to apply a tort 

law legal standard where they would 

still have to exercise professional 

judgement in determining the scope of 

the effects analysis. CEQ is removing the 

phrase ‘‘reasonably close causal 

relationship’’ from the definition of 

‘‘effects’’; the definition will continue to 

include the phrase ‘‘reasonably 

foreseeable’’ consistent with 

longstanding interpretation to allow 

agencies the flexibility to conduct 

appropriate effects analysis in line with 

their discretion and NEPA’s 

requirements. 

Comments on Potential Phase 2 Changes 

CEQ also requested public comments 

on whether a Phase 2 rulemaking 

should provide more specificity about 

the manner in which agencies should 

analyze certain categories of effects. In 

response, some commenters suggested 

that the Phase 2 rulemaking should 

address how agencies address impacts 

from climate change and provide more 

specificity about how agencies analyze 

environmental justice impacts. Others 

emphasized that a Phase 2 rule should 

make the effects analysis more objective 

and less speculative or provide 

additional clarification to the definition 

of effects to produce more effective and 

focused environmental reviews. Some 

commenters requested CEQ issue 

guidance on analysis of effects, and 

some indicated that guidance might be 

more efficient than updating the 

regulations further in a Phase 2 rule. 

CEQ is considering these comments in 

the development of its Phase 2 

rulemaking and its guidance on 

assessing greenhouse gas emissions and 

climate change in environmental 

reviews. 

iii. Rationale for Final Rule 

The final rule makes the changes 

proposed in the NPRM with minor 

modification. The final rule revises the 

introductory paragraph of § 1508.1(g) 

defining ‘‘effects’’ and ‘‘impacts’’ as 

‘‘changes to the human environment 

from the proposed action or alternatives 

that are reasonably foreseeable.’’ The 

NPRM did not include the clause ‘‘that 

are reasonably foreseeable,’’ but the 

final rule retains this clause in response 

to comments. Doing so is consistent 

with the preamble to the NPRM, which 

consistently states that direct, indirect, 

and cumulative effects must be 

reasonably foreseeable. 86 FR 55765–67. 

While the NPRM proposed to remove 

the clause from the definition because 

reasonable foreseeability has always 

been central to defining the scope of 

effects, after considering comments, 

CEQ agrees that this clause enhances 

clarity in line with longstanding agency 

practice and NEPA case law. Therefore, 

CEQ has determined to retain this 

phrase in the final rule. 

The final rule otherwise makes the 

changes as proposed in the NPRM. CEQ 

is including direct, indirect, and 

cumulative effects as part of the 

definition of ‘‘effects’’ or ‘‘impacts’’ to 

avoid disruption and uncertainty caused 

by the 2020 rule and clarify that 

agencies should continue to engage in 

the context-specific inquiry they have 

undertaken for more than 40 years to 

identify reasonably foreseeable effects of 

a proposed action and its alternatives, 

providing for sound decision making. 

The restoration of ‘‘cumulative impacts’’ 

from the 1978 regulations to include 

cumulative effects as a component of 

the definition of ‘‘effects’’ is a nonsubstantive change, as the 1978 

regulations specifically provided that 

the terms ‘‘impacts’’ and ‘‘effects’’ are 

synonymous. Agencies should treat 

cumulative effects under the final rule 

in the same fashion as they treated 

cumulative impacts under the 1978 

regulations. 

As discussed in responding to 

comments above, restoring language on 

direct, indirect, and cumulative effects 

better promotes NEPA’s statutory 

purposes and is more consistent with 

the extensive NEPA case law. See 42 

U.S.C. 4321–4332. Restoring these 

phrases to the regulations also is 

consistent with this Administration’s 

policies to be guided by science and to 

address environmental protection, 

climate change, and environmental 

justice. See, e.g., E.O. 13990 39 and E.O. 

14008.40 Returning to the approach in 

the 1978 regulations provides regulatory 

consistency and stability for Federal 

agencies, affected stakeholders, and the 

public. CEQ is not returning to these 

definitions because this is what has 

always been done, but because 

longstanding CEQ and Federal agency 

experience and practice has 

demonstrated that these interpretations 

promote the aims of the NEPA statute 

and are practical to implement. These 

interpretations also reasonably reflect 

the plain meaning of the statutory 

phrase ‘‘environmental impact,’’ and 

explicitly capture the indirect and 

cumulative nature of many 

environmental impacts. 

CEQ is including direct, indirect, and 

cumulative effects as part of the 

definition of ‘‘effects’’ or ‘‘impacts’’ 

because they have long provided an 

understandable and effective framework 

for agencies to consider the effects of 

their proposed actions in a manner that 

is understandable to NEPA practitioners 

and the public. CEQ considers this 

approach to result in a more practical 

and easily implementable definition 

than the 2020 rule’s definition of 

‘‘effects’’ that explicitly captures the 

indirect and cumulative nature of many 

environmental effects, such as 

greenhouse gas emissions or habitat 

fragmentation. Upon further evaluation 

of the rationale for the 2020 rule and the 

comments CEQ received on the NPRM, 

CEQ does not consider the tort law 

standards of ‘‘close causal relationship’’ 

and ‘‘but for’’ causation to be ones that 

provide more clarity or predictability for 

NEPA practitioners, agency decision 

makers, or the public. Furthermore, as 

discussed in this section, CEQ does not 

consider the existing case law 

interpreting the 1978 definition of 

‘‘effects’’ to require that the NEPA 

regulations limit agency discretion to 

identify reasonably foreseeable effects 

under such a standard. CEQ also is 

removing the potential limitations on 

consideration of temporally or 

geographically removed environmental 

effects, effects that are a product of a 

lengthy causal chain, and ‘‘effects that 

the agency has no ability to prevent due 

to its limited statutory authority or 

would occur regardless of the proposed 

action.’’ These qualifications may 

unduly limit agency discretion and 

stating them as categorical rules that 

limit effects analyses is in tension with 

NEPA’s directives 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). 

Furthermore, this language could lead 

Federal agencies to omit from analysis 

or disclosure critical categories of 

reasonably foreseeable effects that are 

temporally or geographically removed, 

such as climate effects, frustrating 

NEPA’s core purpose and Congressional 

intent. 

Although the 2020 rule preamble 

suggested that agencies could continue 

to consider indirect and cumulative 

effects,41 an agency could 


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the 2020 rule did not automatically exclude from 

analysis effects falling within the deleted definition 

of ‘‘cumulative impact[s].’’ CEQ, 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/CEQ2019-0003-720629. 

42CEQ’s longstanding position has been that 

cumulative effects analysis is ‘‘critical’’ for the 

purposes of evaluating project alternatives and 

developing appropriate mitigation strategies. See 

CEQ GHG guidance at https://ceq.doe.gov/ 

guidance/ceq_guidance_nepa-ghg.html. 

43See, 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). 

44 58 FR 51735 (Oct. 4, 1993). 

45 76 FR 3821 (Jan. 21, 2011). 

misunderstand the language of the rule 

to prohibit considering indirect or 

cumulative effects of their proposed 

actions given the language in 40 CFR 

1508.1(g)(3): ‘‘An agency’s analysis of 

effects shall be consistent with this 

[definition of effects].’’ Additionally, the 

definition included inconsistent 

directions to agencies—the introductory 

paragraph stated that effects ‘‘may 

include effects that are later in time or 

farther removed in distance’’ but 

paragraph (g)(2) stated that agencies 

generally should not consider effects if 

they are remote in time or 

geographically remote. CEQ considers 

the clarification that indirect and 

cumulative effects are included in the 

definition of effects critical to ensuring 

that agency decision makers have a 

complete view of reasonably foreseeable 

effects of their proposed actions.42

Defining ‘‘effects’’ to include direct, 

indirect, and cumulative effects will not 

result in consideration of a limitless 

universe of effects. The consideration of 

effects has always been bounded by a 

reasonableness standard, and, as 

discussed above, the final rule will 

retain language on reasonable 

foreseeability. While CEQ understands 

the importance of predictability, it is 

also critical that analyses are complete 

and scientifically accurate to ensure that 

decision makers and the public are fully 

informed. 

Including direct and indirect effects 

in the definition of ‘‘effects’’ ensures 

that NEPA analyses disclose both 

adverse and beneficial effects over 

various timeframes, providing important 

information to decision makers. For 

example, a utility-scale solar facility 

could have short-term direct effects, 

such as adverse construction and land 

impacts. 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. As another 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. An agency decision 

maker can make a more informed 

decision about how a proposed action 

aligns with the agency’s statutory 

authorities and policies when she has 

information on the comparative 

potential air pollution effects and 

greenhouse gas emissions of the 

proposed action and alternatives, 

including the no action alternative. The 

final rule’s definition of ‘‘effects’’ 

provides clarity and ensures that 

agencies disclose such indirect effects. 

CEQ also has reevaluated its position 

on cumulative effects and disagrees 

with the assertions in the 2020 rule that 

cumulative effects analyses divert 

agency resources from analyzing the 

most significant effects to effects that are 

irrelevant or inconsequential. Rather, 

consideration of reasonably foreseeable 

cumulative effects allows agencies and 

the public to understand the full scope 

of potential impacts from a proposed 

action, including how the incremental 

impacts of a proposed action contribute 

to cumulative environmental problems 

such as air pollution, water pollution, 

climate change, environmental injustice, 

and biodiversity loss. Science confirms 

that cumulative environmental harms, 

including repeated or frequent exposure 

to toxic air or water pollution, threaten 

human and environmental health and 

pose undue burdens on historically 

marginalized communities.43 CEQ does 

not consider such harms to be 

inconsequential or irrelevant, but rather 

critical to sound agency decision 

making. By restoring the phrase 

‘‘cumulative effects,’’ this final rule will 

make clear that agencies must fully 

analyze reasonably foreseeable 

cumulative effects before Federal 

decisions are made. 

CEQ continues to have the goal 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 with the 

assertion in the 2020 rule that requiring 

analysis of reasonably foreseeable 

cumulative effects causes unacceptably 

long NEPA processes. CEQ considers 

the disclosure of all reasonably 

foreseeable direct, indirect, and 

cumulative effects to be critical to the 

informed decision-making process 

required by NEPA, see, e.g., 42 U.S.C. 

4332, such that the benefits of any such 

disclosure outweigh any potential for 

shorter NEPA documents or timeframes. 

Moreover, nothing in this final rule 

suggests that a well-drafted NEPA 

document cannot be both concise and 

supported by thorough analysis. CEQ 

also disagrees with the 2020 rule’s 

assertion that deleting reference to 

direct, indirect, and cumulative effects 

is necessary because agencies have 

devoted substantial resources 

categorizing effects as direct, indirect, or 

cumulative. 85 FR 43343. Nothing in the 

CEQ regulations requires agencies to 

categorize effects separately in this 

manner; instead, well-organized NEPA 

documents address the direct, indirect, 

and cumulative effects of particular 

resources in a cohesive and 

comprehensive manner. Agencies may 

discuss holistically all reasonably 

foreseeable direct, indirect, and 

cumulative effects, rather than 

delineating the categories in separate 

sections of a NEPA document, to 

facilitate the decision maker and the 

public’s comprehensive understanding 

of the effects of the proposed actions 

and alternatives. 

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 

(OIRA) will review all significant 

rules.44 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.45

Because this final rule applies to all 

Federal agencies, it is a significant 

regulatory action that CEQ submitted to 

OMB for review. The changes will 

remove uncertainty created by the 2020 

rule to benefit agencies and the public. 

These changes do not obligate agencies 

to undertake longer, more complicated 

analyses. Furthermore, an effective 

NEPA process can save time and reduce 

overall project costs by identifying and 

avoiding problems, including potential 


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46See Linda Luther, Cong. Rsch. Serv., R42479, 

The Role of the Environmental Review Process in 

Federally Funded Highway Projects: Background 

and Issues for Congress (2012), https://crsreports.

congress.gov/product/pdf/R/R42479. 

47While the changes to § 1507.3 are more than 

clarifying edits, agencies have not revised their 

NEPA procedures to address changes to the CEQ 

regulations made by the 2020 rule. Therefore, this 

change does not have costs and benefits for CEQ to 

consider. 

48 67 FR 53461 (Aug. 16, 2002). 

49 43 FR 25230 (June 9, 1978). 

50 Id. at 25232. 

51 51 FR 15618, 15619 (Apr. 25, 1986). 

52 64 FR 43255 (Aug. 10, 1999). 53 65 FR 67249 (Nov. 9, 2000). 

significant effects, that may occur in 

later stages of project development.46

Additionally, if agencies choose to 

consider additional alternatives and 

conduct clearer or more robust analyses, 

such analyses should improve societal 

outcomes by improving agency decision 

making. Because 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 received a 

number of comments requesting that it 

revisit the regulatory impact analysis 

from the 2020 rule. Because this final 

rule mainly clarifies provisions,47 CEQ 

considers Phase 2 to be the more 

appropriate rulemaking for any 

reconsideration of the regulatory impact 

analysis to the extent Phase 2 proposes 

substantive changes. 

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 48 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 a 

Regulatory Flexibility Analysis at the 

proposed and final rule stages unless it 

determines and certifies that the rule, if 

promulgated, would not have a 

significant economic impact on a 

substantial number of small entities. 5 

U.S.C. 605(b). An agency need not 

perform an analysis of small entity 

impacts when a rule does not directly 

regulate small entities. See Mid-Tex 

Electric Coop., Inc. v. FERC, 773 F.2d 

327 (D.C. Cir. 1985). This final rule does 

not directly regulate small entities. 

Rather, it applies to Federal agencies 

and sets forth the process for their 

compliance with NEPA. Accordingly, 

CEQ hereby certifies that the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. 

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. 11991.49 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.’’ 50 Similarly, in 1986, 

while CEQ stated in the final rule 

amending its regulations 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.51 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. 

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 developed 

a special environmental assessment, 

posted it in the docket, and invited 

comments. CEQ did not receive any 

comments, but made minor changes to 

the special environmental assessment, 

which CEQ has posted in the docket. 

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.52 Policies 

that have federalism implications 

include regulations that have substantial 

direct effects on the states, on the 

relationship between the National 

Government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. This rule does not 

have federalism implications because it 

applies to Federal agencies, not states. 

However, CEQ notes that States may 

elect to assume NEPA responsibilities 

under Federal statutes. CEQ received 

comments in response to the NPRM 

from a number of States, including those 

that have assumed NEPA 

responsibilities, and considered these 

comments in development of the final 

rule. 

E. Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

CEQ acknowledges that it shares a 

government-to-government relationship 

with Tribes that differs from its 

relationship to the general public. 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.53 Such policies include 

regulations that have substantial direct 

effects on one or more Indian Tribes, on 

the relationship between the Federal 

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 final rule on 

Indian Tribal governments and has 

determined that the final rule would not 

significantly or uniquely affect these 

communities. However, CEQ recognizes 

the important role Tribes play in the 

NEPA process and held a governmentto-government consultation on the 

NEPA regulations generally on 

September 30, 2021. CEQ also held a 

consultation specifically on the Phase 1 

proposed rule on November 12, 2021. 

CEQ also invited Tribes and Alaska 

Native Corporations to provide early 

input on the Phase 2 rulemaking as well 

as CEQ’s guidance on considering 

greenhouse gas emissions and climate 

change in NEPA reviews. In addition to 

the feedback provided during these 

consultation sessions, CEQ considered 

written comments that Tribes submitted 

during and after the consultations, as 

well as Tribal comments submitted 

during the public comment period. CEQ 

plans to continue to engage in 

additional government-to-government 

consultation with federally recognized 

Tribes and Alaska Native Corporations 

on its NEPA regulations. During 

consultation and in written comments, 

CEQ has received input on areas of 

importance to Tribes, many of which are 

around provisions that were not 

addressed in this Phase 1 rule. CEQ will 

consider this input for the Phase 2 

rulemaking. 


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54 59 FR 7629 (Feb. 16, 1994). 

55 66 FR 28355 (May 22, 2001). 

56 61 FR 4729 (Feb. 7, 1996). 

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.54 CEQ has 

analyzed this final rule and determined 

that it will not cause disproportionately 

high and adverse human health or 

environmental effects on minority 

populations and low-income 

populations. This rule sets forth 

implementing regulations for NEPA for 

Federal agencies; it is in the agency 

implementation of NEPA when 

conducting reviews of proposed agency 

actions where consideration of 

environmental justice effects occurs. 

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. 13211.55 CEQ has 

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. 

H. Executive Order 12988, Civil Justice 

Reform 

Under section 3(a) of E.O. 12988,56

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 review required 

by section 3(a). CEQ has conducted this 

review and determined that this final 

rule complies with the requirements of 

E.O. 12988. 

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, Tribal, and local 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 

final rule applies to Federal agencies 

and will not result in expenditures of 

$100 million or more for state, Tribal, 

and local governments, in the aggregate, 

or the private sector in any 1 year. This 

action also will 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 final rule will not impose any 

new information collection burden that 

requires 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 amends parts 

1502, 1507, and 1508 in title 40 of the 

Code of Federal Regulations as follows: 

PART 1502—ENVIRONMENTAL 

IMPACT STATEMENT 

■ 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. 

■ 2. Revise § 1502.13 to read as follows: 

§ 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 

■ 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. 

■ 4. Amend § 1507.3 by revising 

paragraph (a) and the introductory text 

of paragraph (b) to read as follows: 

§ 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 

■ 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. 

■ 6. Amend § 1508.1 by revising 

paragraphs (g) and (z) to read as follows: 

§ 1508.1 Definitions. 

* * * * * 

(g) Effects or impacts means changes 

to the human environment from the 

proposed action or alternatives that are 

reasonably foreseeable 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 

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. 


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(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. 2022–08288 Filed 4–19–22; 8:45 am] 

BILLING CODE 3325–F2–P 


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