CEQ Issues Proposed Guidance on NEPA Categorical Exclusions
By Dustin TillThe White House Council on Environmental Quality (CEQ) recently released draft guidance to clarify and promote the use of categorical exclusions under the National Environmental Policy Act (NEPA).[1] 71 Fed. Reg. 54816 (Sept. 17, 2006). Often a lightning rod for controversy and a constant source of litigation, categorical exclusions allow agencies to exempt certain types of actions from NEPA’s environmental review requirements. According to CEQ, federal agencies have expressed both concern that categorical exclusions are too cumbersome to develop, and confusion over how to substantiate new categorical exclusions.[2] As part of its ongoing regulatory modernization process, CEQ hopes that its guidance will streamline review and encourage greater use of “appropriate categorical exclusions [to] promote[] the cost-effective use of agency NEPA related resources.”[3]
NEPA Categorical Exclusions
NEPA generally requires federal agencies to take a “hard look” at the environmental consequences of their proposed actions. Specifically, agencies must prepare an environmental impact statement (EIS) for any proposed major federal action that will significantly affect the human environment.[4] If an agency is uncertain whether its proposed action will have significant environmental impacts, it must prepare an environmental assessment (EA) to determine whether an EIS is necessary.[5] If the EA threshold determination concludes that an EIS is not required, the agency issues a Finding of No Significant Impact (FONSI).[6]
Not all proposed federal actions are subject to assessment in an EIS or EA. CEQ’s NEPA regulations allow agencies to “categorically exclude” from further review those actions that experience has indicated will not have significant environmental effects, individually or cumulatively.[7] Because preparing an EA and/or an EIS can be time consuming and expensive, CEQ has encouraged agencies to develop and refine categorical exclusions to promote efficiency and cost effectiveness.[8]
The use of categorical exclusions is often controversial. For example, the United States Forest Service’s recently established categorical exclusions for hazardous fuel reduction projects and post-fire timber salvage projects have proven litigious.[9] Some commentators contend that categorical exclusions are over-used and permit agencies to ignore the cumulative impacts of numerous small projects.[10] Government officials, on the other hand, argue that categorical exclusions do not weaken NEPA, and that streamlining the categorical exclusion process is part of a comprehensive regulatory reform process that began during the Carter administration.[11]
Streamlining Categorical Exclusions: A Top Priority
In 2002, CEQ established the NEPA Task Force to examine current NEPA practices and protocols and develop recommendations for modernizing the NEPA process.[12] In September 2003, the Task Force issued a report detailing the “results of research and consultations by the [Task Force] concerning the implementation of the environmental impact analysis requirement of [NEPA].”[13] As its top priority, the Task Force recommended that “CEQ issue guidance to clarify and promote consistent practices for the development, documentation, public review, approval, and use of categorical exclusions.”[14] Consistent with the Task Force’s recommendations, CEQ issued its draft Guidance on Categorical Exclusions for public review and comment on September 19, 2006.[15] The draft provides guidance to federal agencies in three areas: (1) substantiating and establishing new categorical exclusions; (2) facilitating public involvement; and (3) reviewing categorical exclusions.[16]
Substantiating and Establishing New Categorical Exclusions
The Task Force determined that agencies were consistently preparing expensive EAs when a categorical exclusion would suffice because agencies were unclear about the level of analysis required, because CEQ’s approval process was burdensome, and because agencies believe that well documented EAs have a greater chance of surviving legal challenges.[17] In response, CEQ’s draft guidance recommends a number of methods for substantiating a proposed categorical exclusion. For example, an agency can rely on assessments of completed or on-going actions and rely on profession staff opinions to substantiate an exclusion. CEQ also encourages agencies to use records and information – i.e., “benchmark” – from other public or private entities’ experiences with similar actions so long as the environmental effects are comparable. The proposed guidance also encourages early consultation with CEQ during the categorical exclusion creation process to facilitate quicker approval.[18]
Public Involvement
CEQ’s current NEPA regulations require agencies to involve the public when creating new categorical exclusions.[19] The Task Force concluded that agencies generally limited public participation to the required Federal Register notice and comment period,[20] thereby limiting public outreach and potentially undermined public support for the use categorical exclusions.[21] CEQ’s draft guidance clarifies the requirements of a Federal Register notification, and encourages agencies to stimulate public participation through focus groups, meetings, conference calls, and web-based forums.[22] The Task Force also encourages agencies to “tailor the type and length of public involvement to the nature of the proposed category of actions and its perceived environmental effects.”[23]
Reviewing and Updating Categorical Exclusions
The Task Force also found that because agencies updated and reviewed categorical exclusions infrequently, most agencies have lists of categorical exclusions that are over ten years old.[24] As a result, agencies may have categorical exclusion lists that no longer reflect current environmental circumstances.[25] CEQ’s proposed guidance encourages agencies to review and update their procedures for revising and deleting categorical exclusions as based on new information and changed circumstances.[26] CEQ noted that periodic review can “serve as an impetus for expanding categorical exclusions to include actions not previously … excluded.”[27]
CEQ will accept written comments on its draft categorical exclusion guidance through October 27, 2006.
Contact Dustin T. Till for more information
[1] NEPA is codified at 42 U.S.C. § 4321.
[2] See generally, NEPA Task Force Report Modernizing NEPA Implementation, Chapter 5 (Sept. 2003)
[3] 71 Fed. Reg. at 54816.
[4] 42 U.S.C. § 4322(2)(C).
[5] 40 C.F.R. § 1508.9(a)(1).
[6] Id. at § 1508.13.
[7] Id. at § 1507.3. “Categorical exclusion” is defined as “a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency … and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.” Id. at § 1508.4.
[8] Guidance Regarding NEPA Regulations, 48 Fed. Reg. 34263 (July 28, 1993). EAs typically take between 2 weeks to 18 months to complete and cost between $5,000 to $500,000. EISs typically take between 1 to 6 years to complete and cost between $250,000 to $2 million. Modernizing NEPA Implementation, 65-66 (Sept. 2003). See also 40 C.F.R. §§ 1500.4(p) (policy of reducing paperwork) and 1500.5(k) (policy of reducing delay).
[9] NEPA Categorical Exclusion for Timber Salvage Upheld (Feb. 8, 2006). As part of the Healthy Forest Initiative, the Forest Service adopted a number of categorical exclusions, including CE-10 and CE-13. CE-10 permits hazardous fuel reduction activities using prescribed fire or mechanical thinning up to 4,500 acres. 68 Fed. Reg. 33814 (June 5, 2003). CE-13 “allows the salvage of dead and/or dying trees not to exceed 250 acres with no more than ½ mile of temporary road construction.” 68 Fed. Reg. 44598 (July 29, 2003). Salvage harvests are permitted in areas where “trees have been severely damaged by forces such as fire, wind, ice, insects, or disease and still have some economic value as a forest product.” Id. CE-13 is limited to salvage of dead or dying trees by timber purchasers. Id. See also Eric E. Huber, Environmental Litigation and the Healthy Forest Initiative, 29 Vt. L. Rev. 797 (Spring 2005).
[10] Draft CEQ Guidance Codifies Criteria For NEPA Study ‘Exclusions’, Inside EPA (Oct. 5, 2006) (subscription required).
[11] Id.
[12] Approval of the National Environmental Policy Act Task Force (April 10, 2002).
Modernizing NEPA Implementation at i. The report set out six broad categories of recommendations for modernizing NEPA: technology and information management security, federal and intergovernmental collaboration, programmatic analysis and tiering, adaptive management and monitoring, environmental assessments, and categorical exclusions.
[14] Id.
[15] 71 Fed. Reg. 54816.
[16] Id.
[17] Modernizing NEPA Implementation at 57-59.
[18] 71 Fed. Reg. at 54818-19. NEPA regulations require agencies to consult with CEQ when developing categorical exclusions. 40 C.F.R. § 1507.3(a).
[19] 40 C.F.R. § 1506.6.
[20] Modernizing NEPA Implementation at 62.
[21] Id.
[22] 71 Fed. Reg.. at 54819.
[23] Id.
[24] Modernizing NEPA Implementation at 58.
[25] 71 Fed. Reg. at 54,820.
[26] Id.
[27] Id.
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