CEQ Issues Revised NEPA Guidelines

The Council on Environmental Quality published final guidelines for the preparation of environmental impact statements in the Federal Register on August 1, 1973.¹ These guidelines are reprinted in ELR at 46003, and are codified in the Code of Federal Regulations, Title 40, Chapter V, Part 1500. All federal agencies and departments are required to prepare their own NEPA procedures in accordance with these guidelines within 180 days.

ELR subscribers were sent copies of the draft guidelines in the April mailing and were informed of the highlights of the proposed revisions in the May issue.² It has been the policy and practice of ELR to publish all available agency NEPA procedures and guidelines since the commencement of the Act's implementation. The complete listing, now in the Table of Contents to the Statutory and Administrative Materials tabular section, will be revised as the agencies take steps to put the new guidelines into effect.

Following the 45-day comment period which began May 2, CEQ made several significant changes in the draft guidelines, adding new sections implementing recent court decisions and changing the language in places to increase the opportunity for public involvement and to emphasize the need to consider related projects in a single impact statement. This Comment summarizes the major substantive changes in the final guidelines. Readers should also note that several sections have been renumbered but not otherwise altered.

Significant Changes in CEQ's Final NEPA Guidelines

1. The final NEPA guidelines have significantly expanded and clarified the provisions dealing with major technology research and development in light of Scientists' Institute for Public Information v. AEC.³

In all cases, "a statement must be prepared before research activities have reached a stage of investment or commitment to implementation likely to determine subsequent development or restrict later alternatives." (§ 1500.6 (d) (2)).

"Agencies engaging in major technology research and development programs should develop procedures for periodic evaluation to determine when a program statement is required for such programs." A four part test is outlined to aid agencies in making this determination. (Id.).

The timing of a statement must be "late enough in the development process to contain meaningful information, but early enough so that this information can practically serve as an input in the decision-making process." (Id.).

Any agency determination that a statement is not necessary must be accompanied by a brief statement of reasons, and must be periodically reviewed and updated. (Id.).

2. The use of program statements followed by subsequent statements on individual actions is emphasized.

[3 ELR 10124]

Previous language is strengthened, making program statements "required" in many cases instead of merely "desirable," and making mandatory the obligation to prepare subsequent statements on major individual actions. (1500.6 (d) (1)). Where an existing impact statement already contains a treatment of alternatives, that treatment may be incorporated provided that it is "current and relevant to the precise purpose of the proposed action." (§ 1500.8 (a) (5)).

3.Agencies are required to file environmental impact statements on all legislative proposals that have environmental significance, not just repetitive legislation. (§ 1500.12 (a)).

4. The scope of the information required in the impact statement is expanded.

Agencies must indicate other countervailing interests "thought to offset the adverse environmental effects of the proposed action." Cost benefit analyses should be attached to the statement. (§ 1500.8 (a) (8)).

Geographically related projects in the same or other agencies should be evaluated in the same statement. Commenting agencies should indicate any environmentally-related federal projects in the area not listed in the impact statement to allow a discussion of the environmental interrelationships. (§ 1500.9 (e) (2); § 1500.6 (a)). "Federal Regional Councils, agencies and the public are encouraged to bring to the attention of the Council and other relevant agencies appropriate situations where a geographic or regionally focused statement would be desirable." (§ 1500.7 (b)).

The relationship of the proposed action to land use plans, policies, and controls for the affected area must be covered, including plans developed in response to the Clean Air Act or the Federal Water Pollution Control Act Amendments of 1972. (§ 1500.8 (a) (2)).

"Alternative measures to provide for compensation of fish and wildlife losses" must be included. (§ 1500.8 (a) (4)).

5. The application of NEPA to ongoing projects is expanded.

New Language stresses the obligation of the agencies to "reassess ongoing projects and programs in order to avoid or minimize adverse environmental effects," and to shape future actions "so as to enhance and restore environmental quality." (§ 1500.13).

6. Public participation is further encouraged.

CEQ has assumed the affirmative burden periodically to publish lists of administrative actions for which environmental impact statements are being prepared as an appropriate "early notice system." (§ 1500.6 (e)). Materials to be made available to the public shall be provided without charge to the extent practicable, or at cost. (§ 1500.9 (d)).

7. Agencies must issue a publicly available record briefly setting forth reasons for negative determinations in cases where an impact statement would normally be required, or where CEQ has specifically requested a statement and the request has been refused. (§ 1500.6 (e)).

8. Draft statements must fulfill and satisfy to the fullest extent possible the requirements established for final statements, (§ 1500.7 (a)).

9. During the comment process, agencies and members of the public should indicate ways of monitoring the environmental effects of a proposed project during the construction, startup, or operation phases. (§ 1500.9 (e) (3)).

1. 38 Fed. Reg. 20549 (August 1, 1973).

2. See Comment, CEQ Proposes New Guidelines for NEPA, 3 ELR 10056 (May, 1973).

3. 3 ELR 20525 (D.C. Cir. June 12, 1973); see also Comment, Application of NEPA to Long-Range Technology Development Programs; SIPI v. AEC, 3 ELR 10099 (July, 1973).