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Reinvigorating the NEPA Process: CEQ's Draft Compliance Regulations Stir Controversy

March 1978

Citation: ELR 10045

In a promising but controversial attempt to ensure fuller compliance with the mandates of the National Environmental Policy Act (NEPA), the Council on Environmental Quality (CEQ) has formulated a draft set of regulations which, when made final, will require all federal agencies to follow more rigorous NEPA procedures than has been the case to date. The Council drafted the regulations pursuant to Executive Order No. 11991, which accompanied President Carter's 1977 Environmental Message and authorized CEQ to promulgate legally binding regulations governing implementation of NEPA's procedural provisions.1 When finally adopted, the new NEPA regulations will replace CEQ's present advisory guidelines2 and necessitate revision of the compliance procedures of the other federal agencies. The rules will result in a greater standardization of NEPA compliance procedures and an increase in the Council's supervisory power over implementation of the statute.

CEQ's initial draft of the regulations, which has been circulated for interagency comment but has not yet been officially released to the public, gives an expansive construction to the statute's requirements and assigns the Council itself a major role in assuring agency compliance with them. The draft provoked a hornets' nest of criticism in the interagency commenting process, however, with other federal agencies objecting that the Council's preliminary proposals exceed the authority granted by the executive order under which they were issued and in some instances go beyond the terms of the Act and the limits set by NEPA case law. The Council's timetable for publishing the proposed regulations for public comment after incorporating interagency suggestions has been pushed back from the original February target date as it has become apparent that portions of the draft regulations will require reconsideration.

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