The Council on Environmental Quality (CEQ) has published an advance notice of proposed rulemaking (ANPRM) seeking comments on potential changes in the regulations implementing the National Environmental Policy Act (NEPA) of 1970. 83 Fed. Reg. 28591 (June 20, 2018)(copy attached). NEPA is the federal statute that requires the preparation of an environmental impact statement (EIS) for any major federal action “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The ANPRM suggests that CEQ is contemplating making rather major changes – the request for comments is framed as twenty questions, covering a wide range of issues, many of which may be of concern to tribes. Two of the questions specifically ask about involvement of tribes in the NEPA process, but tribes can and should comment on any issues of concern. We do think it is likely that some of the entities filing comments in response to the ANPRM may favor limiting tribal involvement in the review of off-reservation projects. As such, we think it is important for tribes to file comments to make sure that CEQ is aware of their concerns.
The deadline for filing comments is July 20, 2018. The ANPRM is available here: https://www.federalregister.gov/documents/2018/06/20/2018-13246/update-to-the-regulations-for-implementing-the-procedural-provisions-of-the-national-environmental
Background. NEPA is implemented through regulations promulgated by CEQ in 1978. 40 C.F.R. Parts 1500 – 1508. In the four decades since, CEQ has issued numerous guidance documents, but the regulations have been substantively revised only once, in 1985. The ANPRM is part of CEQ’s response to Executive Order 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” 82 Fed. Reg. 40463 (Aug. 24, 2017). The policy section of E.O. 13807 calls for environmental reviews and authorization processes to be conducted in a “coordinated, consistent, predictable, and timely manner.” In furtherance of the policy statement, section 5 of the E.O. directs federal agencies to use “One Federal Decision” in processing environmental reviews and authorizations for major infrastructure projects. E.O. 13807 directed CEQ to develop “an initial list of actions to enhance and modernize the Federal environmental review and authorization process,” and CEQ published its “initial list” on September 14, 2017. 82 Fed. Reg. 43226. One item on that list is “review existing CEQ regulations implementing the procedural provisions of NEPA in order to identify changes needed to update and clarify those regulations.” The ANPRM appears to be CEQ’s announcement that it is launching a project to revise the regulations.
Questions That Mention Tribes. Among the twenty questions in the ANPRM, the two that explicitly refer to tribal governments are numbers 2 and 18:
2) Should CEQ’s NEPA regulations be revised to make the NEPA process more efficient by better facilitating agency use of environmental studies, analysis, and decisions conducted in earlier Federal, State, tribal or local environmental reviews or authorization decisions, and if so, how?
18) Are there ways in which the role of tribal governments in the NEPA process should be clarified in CEQ’s NEPA regulations, and if so, how?
Issues for Tribes to Consider. Tribes that administer environmental review processes under tribal law may want to respond to question 2 drawing on their experience. With respect to question 18, one specific point on which the role of tribal governments could be clarified is participation in the NEPA process as cooperating agencies. The regulations provide that a tribe may be a cooperating agency “when the effects are on a reservation.” 40 C.F.R. § 1508.5. Tribes are frequently concerned about environmental impacts outside of reservation boundaries, and many tribes do not have reservations. In practice, CEQ has not interpreted the “on a reservation” regulatory language as a prerequisite for a tribe to be a cooperating agency. Rather, CEQ has issued two guidance documents clarifying that there are two key criteria: a non-federal governmental agency can be a cooperating agency if it has either “jurisdiction by law” or “special expertise.” The guidance documents ignore the “on a reservation” regulatory text. In 2008, when the Department of the Interior (DOI) moved much of its NEPA implementing procedures from the Departmental Manual to the Code of Federal Regulations, DOI adopted the same approach: if a DOI bureau is the lead agency for an EIS, a tribal government agency with either jurisdiction by law or special expertise is eligible to be a cooperating agency. 43 C.F.R. § 46.225. If CEQ is going to make some changes in the regulations, this is one point that ought to be fixed.
Potential Impacts on Tribes. Given the emphasis in E.O. 13807 on making the NEPA process “predictable” and “timely,” several of the 20 questions seek comments on ways to expedite the process and reduce “unnecessary burdens and delays” (e.g., questions 1, 3, 4, 6, 13, 17, 19). Changes in the regulations that are intended to improve “efficiency and effectiveness” may also have the effect of limiting opportunities for tribes to become engaged in the NEPA review of projects outside of reservation boundaries.
Please let us know if we may provide additional information or assistance regarding potential changes in the CEQ regulations implementing NEPA or assistance preparing comments.