November 19, 2021

Council on Environmental Quality
730 Jackson Place
Washington, D.C. 20503

Subject: Proposed revisions of 40 CFR Sections 1502, 1507, and 1508

Dear Council on Environmental Quality (CEQ):

I am writing to you on behalf of over 2,000 members of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization composed of retired, former, or current employees of the National Park Service (NPS). The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. As a group we collectively represent nearly 40,000 years of experience managing and protecting America’s most precious and important natural and historic resources. Among our members are former NPS directors, regional directors, superintendents, environmental and resource specialists, NEPA practitioners, park rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters.

The Coalition submits these comments on CEQ’s proposed National Environmental Policy Act (NEPA) Implementing Regulations Revisions, as announced in 86 Federal Register 55757 et seq. on October 7, 2021 (Agency Docket No. CEQ-2021-0002). Note: The Coalition previously commented on CEQ’s March 2020 “Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act” (Agency Docket No. CEQ-2019-0003). We have attached our previous comment letter and refer to it later in this letter.

We understand that this rulemaking is intended as “Phase I” of CEQ’s effort to sequentially review and revise the 2020 NEPA rule and subsequent phases (e.g., Phase II, etc.) will be provided for public comment as well. In the Background section of the October 7, 2021 Federal Register Notice for the current proposed rulemaking, CEQ summarizes past and current Executive Orders regarding infrastructure and climate change. In addition, case law is provided throughout the preamble to the proposed rule 2021 rule to support CEQ’s proposed changes.


In general, we support the proposed rule as written, which is described as Phase I of several planned revisions of the 2020 final rule. We agree with CEQ stated objectives that the proposed rule will provide clarity to federal agencies in responding to the most recent Executive Orders; and give agencies the tools needed to evaluate the environmental effects of proposed actions in accordance with the purpose and intent of NEPA.

In addition, we offer the following section-specific comments for your consideration:

A: Purpose and Need (§1502.13) – In this section, CEQ proposes to revert to the language of the 1978 NEPA regulations for defining “purpose and need” and then conform the definition of “reasonable alternatives” in § 1508.1(z) to this change. We applaud the proposed changes, which corrects language in the 2020 NEPA regulations that inappropriately constrained agency flexibility in evaluating alternatives.

The 2020 NEPA rule added language that required agencies to base the purpose and need on the goals of an applicant, rather than on “the underlying purpose and need to which the agency is responding in proposing the alternatives, including the proposed action,” as provided in the 1978 NEPA rule. In essence, the narrow focus of the 2020 rule excluded legitimate consideration of other salient factors, such as the public interest, conformance with applicable regulations, desired environmental outcomes, and local economic needs during the preparation and evaluation of “reasonable alternatives.”

Because 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, we strongly agree that the agency’s purpose and need statement must not be unreasonably constrained by an applicant’s purpose, need and objectives. Similarly, while an applicant’s proposal may appropriately be included in the range of reasonable alternatives, the agency’s range of reasonable alternatives must also not be unreasonably constrained by an applicant’s purpose, need, and objectives. In brief, we support the revised language found in the October 7, 2021 proposed rule.

B. Agency NEPA Procedures (§1507.3) – In this section, CEQ proposes to revise sub-sections (a) and (b) to clarify that while agency NEPA procedures need to be consistent with the CEQ regulations, agencies have the discretion and flexibility to develop procedures beyond the CEQ regulatory requirements, enabling agencies to address their specific programs and the contexts in which they operate. We agree that federal agencies need flexibility in their respective NEPA procedures as long as they do not conflict with CEQ’s NEPA implementing regulations and applicable statutory requirements. For example, NEPA is a key tool used by NPS decision makers to determine whether or not the preferred alternative would “impair” park resources or values, as described in the NPS Organic Act (54 U.S.C. § 100101). Preparing such an “impairment determination” sometimes requires additional analyses and disclosures in NPS NEPA documents.

C. Definitions of “Effects” or “Impacts” (§ 1508.1(g)) – In this section, CEQ proposes to restore the definitions of “direct” and “indirect” effects, and “cumulative impacts” from the 1978 NEPA Regulations, 40 CFR 1508.7 and 1508.8 (2019), by incorporating them into the definition of “effects” or “impacts,” such that each reference to these terms throughout 40 CFR parts 1500 through 1508 would include direct, indirect, and cumulative effects.

We fully support restoring the terms “direct” and “indirect” to the definition of “effects” to realign the regulations with longstanding agency practices  and judicial decisions interpreting NEPA.

Similarly, we fully support restoring, with minor modifications, the definition of “cumulative impacts” in § 1508.1(g)(3) of the 1978 NEPA regulations and striking the current provision that repealed that definition. Analysis of reasonably foreseeable cumulative effects is integral to sound and complete environmental review. Cumulative effects analysis is an essential component of NEPA analysis, as it allows agencies and the public to understand how the incremental impacts of a proposed action contribute to cumulative environmental problems such as air pollution, water pollution, climate change, and biodiversity loss, among others.

In proposing to restore the definition of “effects” from the 1978 NEPA regulations, CEQ would remove changes made in the 2020 Rule that limited consideration of effects to only those “that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives.” 40 CFR 1508.1(g). CEQ also proposes to remove and replace § 1508.1(g)(2), which states that “a ‘but for’ causal relationship is insufficient to make an agency responsible for a particular effect under NEPA; agencies generally should not consider effects that are remote in time, geographically remote, or the product of a lengthy causal chain; and agencies should not consider effects that the agency has no ability to prevent due to its limited statutory authority.” (Emphasis added.)

However, the reality is that many consequential reasonably foreseeable environmental effects, such as 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. Restoring the definition of “effects” to the wording in the 1978 NEPA regulations will give agencies the discretion to identify the reasonably foreseeable effects of a proposed action and its alternatives in light of NEPA’s goals. This approach will provide for more sound decision making, including decisions informed by science, and a more knowledgeable and engaged public than the definition of “effects” in the 2020 NEPA regulations.

D. Rulemaking Analyses and Notices – This section of the preamble identifies and summarizes relevant, applicable statutes and executive orders. We suggest CEQ review this section carefully to ensure all relevant recent executive orders regarding the impacts of climate change and the commitment to “evidence based policy making” are included in this section, as appropriate. Documents to consider adding include the following:

  • Executive Order 13990 on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (January 21, 2021)1 – Specifically, section 7(e) of the EO directs CEQ to review, revise, and update its final guidance entitled, “Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews,” 81 Fed. Reg. 51866 (August 5, 2016). Presumably this guidance relates directly to the required content of agency NEPA documents and therefore should be mentioned in the preamble.
  • Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking (January 27, 2021)2 – In our experience, it is not unheard of for politically appointed agency officials to “put their thumb on the scales” of an otherwise objective NEPA analysis prepared by agency resource managers and scientists based on the “best available science.” However, this Memorandum makes clear that “[s]cientific findings should never be distorted or influenced by political considerations.” Since such interference does occur occasionally in the context of a NEPA analysis, it may be worthwhile to include the Memorandum in the list of applicable guidance.
  • Any other relevant executive orders regarding the assessment of impacts from greenhouse gas emissions or other contributors to climate change. It is essential that agency NEPA analyses evaluate such impacts related to proposed Federal actions.


We have a number of significant concerns about the 2020 final NEPA rule that are not addressed in the current proposed rulemaking (i.e., Phase I). We direct your attention to the attached March 10, 2020 comment letter on the 2020 proposed revisions to the longstanding CEQ NEPA implementing regulations. We feel strongly feel that Phase II and any future phases of revisions to the 2020 final rule must address the following concerns:

A. § 1501.4 Categorical exclusions – Subsections (b) and (b)(1) of the 2020 rule use the term “extraordinary circumstances” as a key indicator for agencies to consider when evaluating the appropriateness of using a categorical exclusion versus a more rigorous level of analysis. However, this term is not defined anywhere in the current or proposed regulations. To address this concern, we request that CEQ define the term “extraordinary circumstances” in §1508. See comment on pp. 11-12 of the attached March 2020 letter.

§ 1506.6 Public involvement – Our comments about the 2020 rule expressed concerns regarding overly flexible, essentially discretionary guidance on providing opportunities for public comment on agency NEPA analyses. These concerns arose from vague wording in multiple sections of the proposed rule, including the following sections:

  • § 1501(e), which states: “Agencies shall involve the public, State, Tribal, and local governments, relevant agencies, and any applicants, to the extent practicable in preparing environmental assessments.” (Emphasis added.) Comment: The phrase “to the extent practicable” is unnecessarily (and perhaps intentionally) vague. Since the revision, some agencies (e.g., BLM) have routinely interpreted it to mean that public comment on EA’s is essentially discretionary and can be dispensed with in order to save time.
  • 1503.1(a)(2)(v), which states: “(a) After preparing a draft environmental impact statementand before preparing a final environmental impact statement the agency shall: (2) Request the comments of: (v) The public, affirmatively soliciting comments in a manner designed to inform those persons or organizations who may be interested in or affected by the proposed action.” Comment: While this wording indicates offering some sort of a public comment opportunity on an EIS is required, some agencies have interpreted it to mean that a relatively brief comment period (e.g., of only 30 days) on a complex EIS document is sufficient.

We encourage CEQ to revise the 2020 rule to prescribe minimum time periods for public comment in order to ensure to reasonable opportunities for public involvement in the NEPA process. We recommend the following: for scoping on an EA or EIS, minimum of 30 days; for public comment on an EA, minimum of 30 days; and for public comment on an EIS, minimum of 60 days. Establishing mandatory minimum time limits for public comment is essential to ensuring reasonable opportunities for public involvement as intended under NEPA. In addition, public comments generally help federal agencies make better informed decisions on proposed actions.

Lastly, the requirements in sub-sections 1506.6(b)(2) and (b)(3) of the 2020 final rule regarding Federal Register Notices are inconsistent and confusing. This should be addressed in Phase II of the ongoing rule revision process. See pp. 24-25 of the attached March 10, 2020 comment letter.

C. Agency Time Limits – Several sections of the 2020 rule impose artificial time limits on various phases of preparing an EA or an EIS. In general, time limits must be reasonable and flexible in order for agencies to take a legitimate “hard look” at impacts as required under NEPA. We ask that the following sections of the 2020 rule be re-considered during Phase II:

  • 1501.10 Time limits indicates that: (a) an EA must be completed within 1 year; and (b) an EIS within 2 years “unless a senior agency officialof the lead agency approves a longer period in writing and establishes a new time limit.” We are particularly concerned that elevating these time limit decisions to politically appointed officials “of assistant secretary rank or higher (or equivalent)”, as that term is defined in the 2020 rule, subjects basic procedural decisions to potentially inappropriate political influence. In our collective experience, practical procedural decisions such as this are most effectively made or approved at the field level, such as by the appropriate regional director. We ask that CEQ reconsider this section during Phase II. See comments on pp. 15-16 of the attached March 2020 letter.
  •  1507.3 Agency NEPA procedures, which established unreasonable time limits for agencies to revise their respective NEPA regulations and policies to conform to the 2020 final rule. See comments on pp. 27-29 of the attached March 2020 letter.

D. 1507.2 Agency capability to comply – This section states that “All agencies shall be capable (in terms of personnel and other resources) of complying with the requirements of NEPA and the regulations in parts 1500 through 1508.” While the concept that all agencies would adequately train, fund, and staff its NEPA compliance staff is commendable, making this concept a “requirement” has substantial budgetary and staffing implications that are likely beyond an agency’s control. For example, because of the 2020 rule’s compressed time frames for completing NEPA documents, agencies may actually need additional resources (staff, hiring contractors in lieu of staff, etc.) in order to have the “capability to comply.” We ask that this provision be reconsidered in the context of federal agency budgetary realities during Phase II. See comments on p. 27 of the attached March 2020 letter.

In closing, we greatly appreciate the opportunity to comment on this important issue.


Phil Francis Signature



Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
2 Massachusetts Ave NE, Unit 77436
Washington, DC 20013

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