The Honorable Brenda Mallory
Chair, Council on Environmental Quality
730 Jackson Place, N.W.
Washington, D.C. 20503
Re: Docket Number 2023-0003
Dear Chair Mallory:
This letter represents the collective comments of 88 organizations representing millions of members and supporters regarding the proposed Phase 2 regulations implementing the National Environmental Policy Act (NEPA). Our members care deeply about and participate in the environmental impact assessment process mandated by NEPA. Some of our organizations will also be submitting additional comments.
We are pleased to see the restatement of many core principles of NEPA compliance that had been deleted or diminished in the 2020 regulatory revisions. We applaud many of the new provisions, such as those related to climate change, environmental justice and tribal governments, alternatives, and mitigation. We recognize that certain provisions included in the proposed regulations are required by the Fiscal Responsibility Act of 2023 (FRA). We also have concerns about some of the proposed provisions and recommendations for improvements.1As our comments reference three sets of CEQ’s NEPA regulations, we have identified them using the following format: proposed regulations: “Proposed Section 40 C.F.R. 1500.1;” existing regulations: “40 C.F.R. § 1500.1 (2020);” and original regulations: “40 C.F.R. § 1500.1 (1979).”
I. REGULATORY PROPOSALS THAT RECOGNIZE NEPA’S STATUTORY PURPOSE AND DIRECTION.
The Council on Environmental Quality’s (CEQ) proposal to reinstate many of NEPA’s core concepts throughout the implementing regulations is appropriate and welcome. Many of the changes made in the 2020 regulations reflected an erroneous view that the NEPA process is merely a paperwork exercise with minimal connection to substantive environmental protection. That flawed premise ignores the fundamental purpose of NEPA as clearly stated in the Act:
To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.242 U.S.C. § 4321.
We commend CEQ for reinvigorating the regulations in a manner that educates both implementing agencies and the public about this bedrock law that articulates this country’s national environmental policies and provides a process for achieving them. While the national goals that NEPA establishes are a long way from being realized, the proposed regulations generally do a good job of setting the stage for improved agency decisionmaking in a way that comports with the law’s purpose.
In that regard, we support the proposed revisions to Part 1500, “Purpose and Policy.” The proposed revisions make clear the linkages between our national environmental policies and the NEPA process,3National Environmental Policy Act Implementing Regulations Revisions Phase 2, 88 Fed. Reg. 49924, 49967-49968 (July 31, 2023). emphasize federal agencies’ responsibilities to interpret and administer their policies and regulations and authorizing legislation in accordance with NEPA’s policies and the CEQ regulations,4Id and restore the mandate to comply with the Act “to the fullest extent possible.”5Id. at 49968. The linkage between NEPA’s policies and process is further strengthened by proposed Section 1502.14(f) which would require agencies to identify the environmentally preferable alternative or alternatives in an EIS and by defining the environmentally preferable alternative(s) as the one that would best promote the national environmental policies set forth in Title 101 of NEPA.6Id. at 49977.
We also support the proposed repeal of several current provisions in that section, such as current § 1500.1, which states that the purpose and function of NEPA is satisfied if the agencies consider information that is presented through the environmental impact assessment process and if the public is informed of the process. In fact, the purpose of NEPA is not just to consider information – even good quality information – but to act on it. And the public wishes to participate in the process, not just be informed. Further, we support the proposed rescission of current § 1500.3 and the provisions throughout the current regulations that, in our collective view, inappropriately attempt to give direction to federal courts regarding causes of action and defenses, bonds, ripeness, and other issues associated with litigation.
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