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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Proposed Rules
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generations of Americans. 42 U.S.C.
4331. NEPA directs Federal agencies to prepare detailed statements, referred to as environmental impact statements EISs, for major Federal actions significantly affecting the quality of the human environment. 42 U.S.C.
43322C. NEPA established the Council on Environmental Quality CEQ in the Executive Office of the President, which advises the President on environmental policy matters and oversees Federal agencies implementation of NEPA. 42 U.S.C.
4342. In many respects, NEPA was a statute ahead of its time, and it remains relevant and vital today, from its statements that decisions be grounded in science to its recognition that sustainability and a livable environment are fundamental to social and economic well-being. See, e.g., 42 U.S.C. 4331, 4332A.
In 1970, President Nixon issued Executive Order E.O. 11514, Protection and Enhancement of Environmental Quality, which directed CEQ to issue guidelines for implementation of section 1022C of NEPA.2 In response, CEQ
issued interim guidelines in April 1970, and revised the guidelines in 1971 and 1973.3 In 1977, President Carter issued E.O. 11991, Relating to Protection and Enhancement of Environmental Quality, amending E.O. 11514 and directing CEQ
to issue regulations to govern implementation of NEPA and requiring that Federal agencies comply with those regulations.4 CEQ promulgated implementing procedures in 1978 at 40
CFR parts 1500 through 1508.5 The regulations, issued 8 years after NEPAs enactment, reflect CEQs interpretation of and expertise in NEPA, initial interpretations of the courts, and Federal agency experience implementing NEPA. Consistent with the requirement in 40 CFR 1507.3, Federal agencies, in turn, issue and update their own implementing procedures to supplement CEQs procedures and integrate the NEPA
process into the agencies specific programs and processes. Agencies consult with CEQ in the development of these procedures to ensure that their agency-specific procedures are consistent with CEQs regulations. CEQ
made technical amendments to the 1978
2 35

FR 4247 Mar. 7, 1970, sec. 3h.
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.
3 See
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implementing regulations in 1979 6 and amended one provision in 1986,7 but it left the regulations largely unchanged for over 40 years 1978 NEPA
Regulations. As a result, CEQ and Federal agencies have extensive experience in implementing NEPA and the 1978 regulations, and a large body of agency practice and case law has developed based on the CEQ NEPA
regulations that remained in substantially the same form from 1978
to 2020. The fundamental principles of informed and science-based decision making, transparency, and public engagement are reflected in both the NEPA statute and CEQs 1978 NEPA
Regulations, and it is those core principles that CEQ seeks to advance in this proposed rule.
On August 15, 2017, President Trump issued E.O. 13807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,8
which, in part, directed CEQ to establish and lead an interagency working group to identify and propose changes to the NEPA regulations.9 In response, on January 10, 2020, CEQ published a notice of proposed rulemaking NPRM
proposing broad revisions to the 1978
NEPA Regulations.10 A wide range of stakeholders submitted more than 1.1
million comments on the proposed rule,11 including state and local governments, Tribes, environmental advocacy organizations, professional and industry associations, and other advocacy or non-profit organizations.
Many commenters provided detailed feedback on the legality, policy wisdom, and potential consequences of the proposed amendments. In keeping with the proposed rule, the final rule promulgated on July 16, 2020, made wholesale revisions to the regulations and took effect on September 14, 2020
2020 NEPA Regulations or 2020
Rule.12
In the months that followed the issuance of the 2020 NEPA Regulations, five lawsuits were filed challenging the 2020 Rule.13 These cases challenge the 6 44

FR 873 Jan. 3, 1979.
7 51 FR 15618 Apr. 25, 1986 amending 40 CFR
1502.22.
8 82 FR 40463 Aug. 24, 2017.
9 Id., sec. 5eiii.
10 85 FR 1684 Jan. 10, 2020.
11 See Docket No. CEQ20190003, https
www.regulations.gov/document/CEQ-2019-00030001.
12 85 FR 43304 July 16, 2020.
13 Wild Va. v. Council on Envt Quality, No.
3:20cv45 W.D. Va. 2020; Envtl. Justice Health All.
v. Council on Envt Quality, No. 1:20cv06143
S.D.N.Y. 2020; Alaska Cmty. Action on Toxics v.

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2020 NEPA Regulations on a variety of grounds, including under the Administrative Procedure Act APA, NEPA, and the Endangered Species Act, contending that the rule exceeded CEQs authority and that the related rulemaking process was procedurally and substantively defective. In response to CEQ and joint motions, the district courts have issued temporary stays in each of these cases, except for Wild Virginia v. Council on Environmental Quality, which the district court dismissed without prejudice on June 21, 2021,14 and is currently on appeal to the U.S. Court of Appeals for the Fourth Circuit.
On January 20, 2021, President Biden issued E.O. 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.15 Section 1 of E.O. 13990
establishes an Administration policy to listen to the science; improve public health and protect our environment;
ensure access to clean air and water;
limit exposure to dangerous chemicals and pesticides; hold polluters accountable, including those who disproportionately harm communities of color and low-income communities;
reduce greenhouse gas emissions;
bolster resilience to the impacts of climate change; restore and expand our national treasures and monuments; and prioritize both environmental justice and the creation of well-paying union jobs necessary to deliver these goals.16
Section 2 of the E.O. calls for Federal agencies to review existing regulations issued between January 20, 2017, and January 20, 2021, for consistency with the policy articulated in the E.O. and to take appropriate action. Section 7b revokes a number of E.O.s, including E.O. 13807, and section 7f directs agencies to promptly take steps to rescind any rules or regulations implementing or enforcing any of the revoked E.O.s. An accompanying White House fact sheet, published on January Council on Envt Quality, No. 3:20cv5199 N.D. Cal.
2020; California v. Council on Envt Quality, No.
3:20cv06057 N.D. Cal. 2020; Iowa Citizens for Cmty. Improvement v. Council on Envt Quality, No.
1:20cv02715 D.D.C. 2020. Additionally, in The Clinch Coalition v. U.S. Forest Service, No.
2:21cv00003 W.D. Va. 2020, plaintiffs challenge the U.S. Forest Services NEPA implementing procedures, which established new categorical exclusions, and, relatedly, the 2020 Rules provisions on categorical exclusions.
14 Wild Va. v. Council on Envt Quality, No.
3:20cv45, 2021 WL 2521561 W.D. Va. June 21, 2021.
15 86 FR 7037 Jan. 25, 2021.
16 Id., sec. 1.

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