On November 23, 2010, the President’s Council on Environmental Quality (CEQ) issued a guidance document captioned “Final Guidance for Federal Agencies on Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act” (hereinafter “CEQ Categorical Exclusions Guidance”). This guidance document, which was issued as a “Memorandum for Heads of Federal Departments and Agencies” from Nancy H. Sutley, Chair, Council on Environmental Quality, is available on the CEQ NEPA website: www.nepa.gov. It was also published in the Federal Register, 75 Fed. Reg. 75628 (Dec. 6, 2010), in a format that includes responses to comments on a draft which had been released for review on February 18, 2010. The effective date of the guidance was December 6, 2010.
The basic purpose of categorical exclusions is to expedite compliance with NEPA for federal actions that have little or no potential to cause significant environmental impacts. The new guidance document calls on federal agencies to review their lists of categorical exclusions to consider if changes are in order. CEQ recommends agencies conduct such a review on a periodic basis, at least once every seven years. Based on that standard, some agencies are overdue for conducting a review of their categorical exclusions lists; for example, it has been more than a decade since the Bureau of Indian Affairs (BIA) conducted such a review.
Opportunity for Tribes. The issuance of the CEQ Categorical Exclusions Guidance presents an opportunity for tribes and intertribal organizations to seek consultation with federal agencies that are responsible for NEPA compliance for projects on lands under tribal jurisdiction and explore possibilities for expediting NEPA compliance by establishing new categorical exclusions. This may be particularly appropriate for categories of actions in which tribal government agencies are already doing most of the work to prepare NEPA documents. Tribes and intertribal organizations may also want to consult with federal agencies regarding the kinds of actions for which treatment as categorical exclusions is not appropriate, for example, because of the likelihood of impacts on places that hold religious and cultural importance for tribes.
What “categorical exclusion” means. NEPA is the statute that requires federal agencies to consider the environmental impacts of proposed federal actions. The statutory requirement of NEPA is that every federal agency must prepare an environmental impact statement (EIS) for any major Federal action “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). This requirement is implemented through regulations issued by CEQ. 40 C.F.R. parts 1500 – 1508.
The CEQ regulations establish a kind of screening process for determining whether an EIS is required. The intent of this screening process is to enable agencies to focus their efforts on proposed actions that do have the potential to result in significant impacts. In the screening process there are three basic levels of scrutiny. Categorical exclusions are subject to the lowest level of scrutiny – in most cases there is only minimal documentation of the decision to rely on a categorical exclusion. In the middle range of scrutiny are proposed actions that require the preparation of an environmental assessment (EA), which is a less-detailed document than an EIS. (An EA is used to determine whether the impacts of the proposed action may be significant – if so, then an EIS is required. If, based on an EA the responsible federal official concludes that the impacts will not be significant, the federal official signs a finding of no significant impact (FONSI), and that satisfies the requirements of NEPA as implemented through the CEQ regulations.) An EIS is the most detailed level of scrutiny. The CEQ regulations include extensive provisions on the procedural and substantive requirements for preparing an EIS.
As defined in the CEQ regulations, the term “categorical exclusion” means “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 in implementation of these regulations … and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.” The regulations also provide that each agency’s procedures “shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.”
Categorical exclusions allow agencies to comply with NEPA with very little time or trouble. As the CEQ Categorical Exclusions Guidance says, “Appropriate reliance on categorical exclusions provides a reasonable, proportionate, and effective analysis for many proposed actions, helping agencies reduce paperwork and delay.” On the other hand, the Guidance adds, “If used inappropriately, categorical exclusions can thwart NEPA’s environmental stewardship goals, by compromising the quality and transparency of agency environmental decisionmaking, as well as by compromising the opportunity for meaningful public participation and review.” The Guidance is intended to help agencies use categorical exclusions appropriately and to curb inappropriate use.
Agency-specific NEPA Implementing Procedures. Each agency is required to adopt procedures to implement the CEQ regulations, and each agency’s implementing procedures are required to include a list of actions that are treated as categorical exclusions. Some agencies issue their procedures in guidance manuals and some publish their procedures as regulations, but in either case they must be published for review and comment in the Federal Register. The Department of the Interior (DOI) uses a combination of regulations and manuals: the DOI procedures are codified at 43 C.F.R. part 46, with the Department-wide list of categorical exclusions at 43 C.F.R. § 46.210; procedures that are specific to DOI bureaus are found in the Departmental Manual, in title 516 (available at http://elips.doi.gov). For example, categorical exclusions specific to the Bureau of Indian Affairs (BIA) are found at 516 DM Ch. 10, § 10.5. Procedures for many agencies can be accessed on the CEQ website at www.nepa.gov.
Given that each agency has its own list of categorical exclusions, it perhaps should not be surprising that the use of categorical exclusions has been somewhat inconsistent among agencies, both in how agencies decide which categories should be excluded and how agencies document the use of a categorical exclusion for a particular proposed action. Dealing with such inconsistencies is one of the reasons for the new CEQ Guidance.
What the term “extraordinary circumstances” means. As provided in the definition of categorical exclusion quoted above, each agency’s NEPA implementing procedures “shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” If an extraordinary circumstance applies, then an environmental assessment must be prepared. The CEQ regulations do not define the term “extraordinary circumstances.” The DOI NEPA implementing procedures include a list of extraordinary circumstances that is adapted from the definition of the term “significantly” in the CEQ regulations. § 1508.27. As noted in the CEQ Categorical Exclusions Guidance, this is a common approach that agencies use to identify extraordinary circumstances. The DOI list of extraordinary circumstances is codified at 43 C.F.R. § 46.215.
Observations on the CEQ Guidance. The CEQ Categorical Exclusions Guidance addresses a range of issues, which are organized under the following headings:
- Establishing and Revising Categorical Exclusions
- Substantiating a New or Revised Categorical Exclusion
- Procedures for Establishing a New or Revised Categorical Exclusion
- Applying an Established Categorical Exclusion
- Periodic Review of Established Categorical Exclusion
While the CEQ Guidance discusses numerous issues under each of these headings, we take note of only a few points in the Memorandum.
Under the first heading Establishing and Revising Categorical Exclusions, the CEQ Guidance says that agencies may “identify potential new categorical exclusions after the agencies have performed NEPA reviews of a class of proposed actions and found that, when implemented, the actions resulted in no significant impacts.” In other words, if an agency has routinely treated actions within a category as requiring an EA and the agency rarely or never determines, based on an EA, that an EIS is required, such a category of actions may be a logical candidate for a categorical exclusion.
Under the heading Substantiating a New or Revised Categorical Exclusion, the CEQ Guidance suggests four ways to gather sufficient information to substantiate a new categorical exclusion for actions that “do not obviously lack significant environmental effects: (1) monitoring and evaluating the effects of actions that have been implemented based on an EA and FONSI; (2) conducting “impact demonstration projects” to assess the effects of kinds of actions for which an agency lacks experience; (3) relying on information from professional staff, expert opinions, and scientific analyses; and (4) “benchmarking” other agencies’ experience. Under the fourth approach, the “others” on whose experience an agency may draw include “state and local agencies, Tribes, academic and professional institutions, and other Federal agencies.” After gathering information, the agency should develop findings to be maintained in an administrative record and made available to the public.
Under Procedures for Establishing a New or Revised Categorical Exclusion, the CEQ Guidance sets out a process that includes consulting with CEQ and with other Federal agencies
with similar programs, publication in the Federal Register for public review and comment, consideration of comments, further consultation with CEQ, and publication of a final version in the Federal Register.
Under Applying an Established Categorical Exclusion, the CEQ Guidance says that agencies face two key decisions: (1) whether to document a decision to use a categorical exclusion for a proposed action; and (2) whether to seek public involvement in a decision to use a categorical exclusion for a proposed action. Neither is required by the CEQ regulations, although the CEQ Guidance notes that in some cases courts have set aside a federal action for failure to make a contemporaneous record of a decision to use a categorical exclusion, including a determination that no extraordinary circumstance applies. One example of such a case is Reed v. Salazar, on which we reported in General Memorandum 10-120 (Oct. 1, 2010), in which the Federal District Court for the District of Columbia rescinded the annual funding agreement between the Department of the Interior and the Confederated Salish and Kootenai Tribes for management of the National Bison Range Complex for failure of the Fish and Wildlife Service to prepare such a contemporaneous record (which in the practice of many agencies typically consists of a two-page checklist). (The United States has filed a notice of appeal in that case.)
While the CEQ regulations do not require agencies to provide notice to the public when they decide to use a categorical exclusion, the CEQ Guidance recommends that agencies determine those circumstances in which the public should be engaged or notified beforehand. CEQ strongly recommends that such information be provided on agency websites.
Under Periodic Review of Established Categorical Exclusion, the CEQ Guidance offers several reasons why each agency should review its list of categorical exclusions on a periodic basis. It may find that a particular categorical exclusion is defined either too narrowly or too broadly. It may find that there should be some tailoring of extraordinary circumstances for certain categorical exclusions. As a general rule, CEQ recommends that each agency review its categorical exclusions and extraordinary circumstances at least every seven years. For agencies that have not conducted periodic review, they should do so “as soon as possible.” As noted earlier, it has been more than a decade since the BIA reviewed its categorical exclusions list. Actually, the most recent substantive review was in 1996. 61 Fed. Reg. 67848 (Dec. 24, 1996). Moreover, the BIA has never proactively engaged tribal governments in conducting a review of this list. In all probability, the list of categorical exclusions could be expanded, which would help to expedite BIA approvals of actions that, in the era of tribal self-determination, are for the most part carried out by the tribes rather than by BIA.
If you would like further information regarding the CEQ Categorical Exclusions Guidance, please contact us.