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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Proposed Rules
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longstanding 1978 NEPA Regulations 40 CFR 1508.1g.
CEQ proposes to amend these provisions by generally reverting to the language from the 1978 NEPA
Regulations that was in effect for more than 40 years, subject to minor revisions for clarity. In proposing to revert to language in the 1978 Regulations, this NPRM addresses 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 NEPA
Regulations, which will facilitate an expeditious Phase 1 rulemaking. For each provision described in this section, CEQ provides a high-level summary of some of the significant issues raised in these public comments, which CEQ
considered in the development of this proposed rule.
A. Purpose and Need 1502.13
The purpose and need section of an EIS sets forth the rationale for the agencys proposed action. Development of the purpose and need is a vital early step in the NEPA process that is foundational to other elements of a NEPA review. For example, the purpose and need statement sets the parameters for the range of reasonable alternatives an agency considers and informs the scope of effects that an agency must analyze in an EIS. The 1978 NEPA
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. The 2020 NEPA
Regulations modified this provision by adding language that requires agencies to base the purpose and need on the goals of an applicant and the agencys authority when the agencys statutory duty is to review an application for authorization. The 2020 NEPA
Regulations also made a conforming addition to the definition of reasonable alternatives to carry over the new language on purpose and need. Here, CEQ proposes in 1502.13 to revert to the language of the 1978 NEPA
Regulations for purpose and need and conform the definition of reasonable alternatives in 1508.1z to this change.
CEQ proposes this change because the language added by the 2020 NEPA
Regulations requires an agency to always base the purpose and need on the goals of an applicant and the agencys statutory authority when an agency is reviewing an application for authorization. This language could be construed to require agencies to prioritize the applicants goals over other relevant factors, including the
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public interest. CEQ does not consider this approach to reflect the best reading of the NEPA statute or lay the appropriate groundwork for environmentally sound 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. For example, agencies may consider regulatory requirements, desired conditions on the landscape or other environmental outcomes, and local economic needs, as well as an applicants goals. Always tailoring the purpose and need to an applicants goals when considering a request for an authorization could prevent an agency from considering alternatives that better meet the policies and responsibilities set forth in NEPA merely because they do not meet an applicants stated goals.
Additionally, an applicants goals themselves could be potentially confusing or unduly narrow or restrictive. Restoring the 1978 language would eliminate this confusing language and reaffirm agency discretion to develop and rely on statements of purpose and need that are consistent with the agencys decision-making responsibilities while considering multiple relevant factors, including the public interest and the goals of an applicant. This restoration would confirm that agencies should consider a range of alternatives that are technically and economically feasible and meet the purpose and need for the proposed action but that are not unreasonably constrained by an applicants stated goals.
In adding this language, the preamble to the 2020 Rule explained that CEQ
intended to clarify that when an agency is responsible for reviewing applications for authorizations, the agency must base the purpose and need on the applicants goals and the agencys statutory authority, citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 D.C. Cir. 1991. However, this case did not require the agency to base the purpose and need on the applicants goals; rather, the court held that the agencys consideration of the applicants goals to develop the purpose and need statement was not arbitrary and capricious. However, the court did not require that the applicants goals be the sole or even primary factor in the formulation of the purpose and need for the action. See id. at 19699.
CEQ proposes to remove the reference to the agencys statutory authority because it is unnecessary and confusing.
It is unnecessary because agencies already had a long history of developing
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purpose and need statements under the 1978 NEPA Regulations guided by their statutory authority and the scope of the agency decision under consideration.
The reference is confusing because it implies that an agencys authority is only relevant when an agency proposes to grant an authorization, and agencies must also appropriately consider the scope of their authority when evaluating other agency actions, including those that do not involve specific authorizations. Therefore, CEQ proposes to eliminate the reference to an agencys authority because purpose and need statements have always been informed by the scope of the agencys statutory decision-making authority irrespective of whether the action is an application for authorization. A reference to an agencys statutory authority in this one context therefore seems unnecessary.
To promote informed decision making, transparency, and public engagement, a properly drawn purpose and need statement should lead to consideration of the reasonable alternatives to the proposed action, consistent with NEPAs requirements.
See 42 U.S.C. 43322C. While a purpose and need statement that is too narrow is inconsistent with NEPAs requirement to consider alternatives to the proposed action, so too is a boundless analysis of alternatives.
Rather, agencies are guided by a rule of reason in identifying the reasonable alternatives that are technically and economically feasible and meet the purpose and need of a proposed action.
See, e.g., HonoluluTraffic.com v. Fed.
Transit Admin., 742 F.3d 1222, 1230
9th Cir. 2014.
For example, a private applicant seeking a right-of-way on Federal land may want to site the right-of-way at a specific location and may, correspondingly, frame the applicants goals as a right-of-way with a particular location or route. However, the agency with jurisdiction over the proposed action may want to consider a range of reasonable locations for the right-of-way that would, for example, avoid environmental impacts or reduce conflicts with other programs or plans.
Inherent in the NEPA process is the consideration of the public interest when developing a purpose and need statement, including analyzing proposed actions and alternatives. As the U.S. Court of Appeals for the Seventh Circuit explained in Simmons v. U.S. Army Corps of Engineers, 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. 120 F.3d 664,
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