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Federal Register / Vol. 86, No. 122 / Tuesday, June 29, 2021 / Rules and Regulations Rule.6 As amended, 40 CFR 1507.3b requires Federal agencies to propose their own regulations to implement the 2020 Rule by September 14, 2021. CEQ
issued a Memorandum to the Federal SUPPLEMENTARY INFORMATION:
agencies on July 16, 2020, and the Office I. Background of Management and Budget OMB
issued a Memorandum to the Federal The National Environmental Policy agencies on November 2, 2020, Act of 1969, 42 U.S.C. 4321 et seq., NEPA directs Federal agencies to use establishing deadlines for Federal all practicable means and measures . . . agencies to implement the September 7
to create and maintain conditions under 14, 2021 deadline.
which man and nature can exist in On January 20, 2021, President Biden productive harmony, and fulfill the signed E.O. 13990, Protecting Public social, economic, and other Health and the Environment and requirements of present and future Restoring Science to Tackle the Climate generations of Americans. 42 U.S.C.
Crisis, to empower Americas workers, 4331a. In pursuit of that directive, combat climate change, address NEPA requires Federal agencies to environmental justice, and improve and prepare an environmental impact protect public health and the statement for major Federal actions environment.8 In accomplishing these significantly affecting the quality of the goals, E.O. 13990 directs Federal human environment. 42 U.S.C.
agencies to ensure the integrity of their 43322C. NEPA also established the decision-making processes and make Council on Environmental Quality sound decisions based on science. E.O.
CEQ in the Executive Office of the 13990 directs Federal agencies to review President, 42 U.S.C. 4342, which Federal agency actions taken between oversees Federal agency implementation January 20, 2017, and January 20, 2021, of NEPA.
including the promulgation of In 1970, President Nixon issued E.O.
regulations, for consistency with those 11514, Protection and Enhancement of priorities and to take appropriate action, Environmental Quality, which directed including publishing for notice and CEQ to issue guidelines for comment a proposed rule suspending, implementation of NEPA.1 In 1977, revising, or rescinding actions found to President Carter issued E.O. 11991, be inconsistent with them. An Relating to Protection and Enhancement accompanying White House Fact Sheet of Environmental Quality, directing CEQ specifically identifies the 2020 Rule as to issue regulations to govern among the actions to be reviewed.9 On implementation of NEPA and requiring January 27, 2021, the President signed that Federal agencies comply with those E.O. 14008, Tackling the Climate Crisis regulations.2 CEQ promulgated at Home and Abroad, which establishes implementing regulations in 1978 at 40
a government-wide approach to CFR parts 1500 through 1508 1978
reducing climate pollution and Rule.3 Consistent with the establishes an Administration policy to requirement in 40 CFR 1507.3, Federal increase climate resilience, transition to agencies, in turn, issued their own a clean-energy economy and support implementing procedures to economic opportunities in energy supplement the 1978 Rule and integrate communities, address environmental the NEPA process into the agencies justice issues and invest in specific programs and processes. CEQ
disadvantaged communities, and spur made technical amendments to the 1978 well-paying union jobs and economic Rule in 1979 4 and promulgated minor amendments to it in 1986,5 but left the 6 85 FR 43304 July 16, 2020.
7 CEQ, Memorandum for Heads of Federal regulations largely unchanged for over Departments and Agencies, Implementation of forty years. As a result, an extensive Updated National Environmental Policy Act body of agency practice and caselaw Regulations July 16, 2020, https ceq.doe.gov/
developed based on the 1978 Rule.
docs/laws-regulations/memo-implementationOn July 16, 2020, CEQ issued a final updated-regs-2020-07-16-withdrawn.pdf; Budget and Management Guidance on Updates to the rule substantially revising the NEPA
Regulations Implementing the Procedural implementing regulations 2020
FOR FURTHER INFORMATION CONTACT:

lotter on DSK11XQN23PROD with RULES1

Amy B. Coyle, Deputy General Counsel, 2023955750, Amy.B.Coyle@
ceq.eop.gov.

1 35

FR 4247 Mar. 7, 1970, sec. 3h.
2 42 FR 26967 May 25, 1977, sec. 2g.
3 Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, 43 FR 55978 Nov. 23, 1978.
4 44 FR 873 Jan. 3, 1979.
5 51 FR 15618 Apr. 25, 1986 amending 40 CFR
1502.22.

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Provisions of the National Environmental Policy Act, M2101 Nov. 2, 2020, https
www.whitehouse.gov/wp-content/uploads/2020/11/
M-21-01.pdf.
8 86 FR 7037 Jan. 25, 2021.
9 White 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/.

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growth.10 E.O. 14008 also requires the Chair of CEQ and the Director of OMB
to ensure that Federal infrastructure investments reduce climate pollution and that Federal permitting decisions consider the effects of greenhouse gas emissions and climate change.11
CEQ is engaged in an ongoing and comprehensive review of the 2020 Rule for consistency with the nations environmental, equity, and economic priorities; to evaluate the process CEQ
used in developing the 2020 Rule; and to consider whether the 2020 Rule properly and lawfully interprets and implements NEPA. In conducting its review, CEQ will assess how to amend its NEPA regulations to deliver an efficient environmental review process that ensures robust public participation and environmental protection.
II. Summary of Final Rule CEQ has begun its review of the 2020
Rule and has substantial concerns about the legality of the 2020 Rule, the process that produced it, and whether the 2020
Rule meets the nations needs and priorities, including the priorities set forth in E.O. 13990 and E.O. 14008.
These concerns include that some of the changes made to the NEPA regulations create confusion with respect to NEPA
implementation, break from longstanding caselaw interpreting NEPAs statutory requirements, and may have the purpose or effect of improperly limiting relevant NEPA analysis, with negative repercussions in critical areas such as climate change and environmental justice that are inconsistent with the mandates of E.O.
13990 and E.O. 14008. CEQ plans to address these issues through further rulemaking, as described below.
Notwithstanding CEQs ongoing review, the severity of CEQs concerns, and the likelihood that CEQ will propose significant amendments to the 2020
Rule, 40 CFR 1507.3b currently requires Federal agencies to propose revisions to agency-specific NEPA
regulations within 12 months of September 14, 2020by September 14, 2021. Through this interim final rule, CEQ revises 1507.3b to change 12
months to 36 months, providing Federal agencies an additional two years, until September 14, 2023, to propose revisions to their NEPA procedures.
Federal agencies have raised concerns to CEQ about developing revised procedures consistent with the 2020
Rule given its inconsistency with E.O.
13990 and E.O. 14008 and CEQs ongoing review, which could result in 10 86
11 Id.

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FR 7619, 7622 Feb. 1, 2021.
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