NEPA Regulations - Deadline for Comments

Description

Council on Environmental Quality seeks 

comments from Tribes on updating NEPA regulations 

Deadline for Comments is Friday, September 29^th

The White House Council on Environmental Quality (CEQ) is accepting comments on proposed revisions to the rules implementing the National Environmental Policy Act (NEPA).  The deadline for comments is fast approaching - Friday, September 29^th.  

Learn more about the proposed changes and submit comments at CEQ’s portal.  Also, there is one remaining virtual public meeting hosted by CEQ on Thursday, September 21, 2023, from 2 p.m. to 5 p.m. EDT. For additional information and to register for the meetings, please visit CEQ's website at www.nepa.gov.  

Why is NEPA important to Tribes? Over 80 federal agencies (BIA, EPA, US Fish and Wildlife Service, to name just a few) must comply with NEPA and so the regulations matter when it comes to the priorities of Indian Country: broadband, fee-to-trust applications, water infrastructure, cultural resources, and treaty rights, are just some of the many areas that have the potential to be affected.    

NEPA’s main goals are to ensure that federal agencies fully study and disclose the environmental and health effects of proposed projects and inform and involve impacted communities in federal decisionmaking.   

NEPA may impact Tribal interests and priorities in both positive and negative ways depending on the type of project proposed and other factors. The NEPA process helps ensure that issues important to Tribes are disclosed and that Tribal perspectives are considered in agency decision-making which has at times resulted in the improvement or even defeat of damaging projects. At other times, however, the NEPA process has hindered Tribal sovereignty, treaty rights and self-determination.     

CEQ is looking for input on how NEPA impacts Tribes and how the rule can be improved.  Some areas to consider include: 

Do Tribes have adequate resources to respond to the requirements of NEPA and how does the federal government propose to alleviate any burden placed upon Tribes?     

How can the process for meaningfully involving Tribes be improved?    

Is NEPA’s “cumulative impacts” analysis sufficiently meaningful and does it look far enough into the future to protect culture and the well-being of future generations?   

CEQ also seeks Tribal input on whether and how to define Indigenous Knowledge and on other issues specific to Tribal interests (see attached rulemaking highlights).  

Some key provisions in the proposed rule that may be of interest to Tribal Nations and Indigenous communities include:   

Tribal Sovereignty.   

Exclude from the definition of “major federal action” – and therefore the requirement to complete an environmental review process – activities or projects approved by a Tribal Nation that occur on or involve Indigenous lands when the activities involve no federal funding or other federal involvement.  

Clarify that Tribal agencies may serve as joint lead agencies.  

Ensure that federal agencies respect and account for, as determined appropriate by Tribal Nations, the unique knowledge that Tribal governments bring to the environmental review process, by codifying that the “special expertise” provided by cooperating agencies includes Indigenous Knowledge.  

Environmental Justice.  

Require that environmental review documents include environmental justice analysis and that agencies mitigate impacts so that government decisions avoid undue and adverse effects on communities with environmental justice concerns. 

Require agencies to identify and assess alternatives to proposed projects which address adverse health and environmental effects that disproportionately affect communities with environmental justice concerns. 

Threshold Determinations.  

Restore, with some modification the process that federal agencies have long used to evaluate the significance of a proposed action’s effects, which in turn informs the appropriate level of analysis. For example, the proposal would confirm that agencies should consider, among other things, an action’s proximity to unique or sensitive resources or to vulnerable communities.  

CEQ would expand the considerations guiding an agency’s analysis of an effect’s significance to include the degree to which the action may have disproportionate and adverse effects on communities with environmental justice concerns and whether an action may impact reserved tribal treaty rights.  

Here are some of the issues which CEQ has specifically requested input from Tribes (this link provides page numbers for both the CEQ website and the Federal Register):  Specific Issues on which CEQ Invites Comment in Phase 2 rules regarding Tribes.docx 

§ 1500.2(d) (p. 24). Appropriate Level of NEPA Review (§ 1501.3)  

§ § 1501.3(d)(2)(iv) (p. 44). CEQ proposes to make a clarifying edit to the factor in 40 CFR 1501.3(b)(2)(iv) relating to actions that may violate Federal, State, Tribal, or local law by adding reference to “other requirements.” CEQ also proposes to include inconsistencies with policies designed for protection of the environment because agencies should not necessarily limit their inquiry to statutory requirements. Of course, it may be appropriate to give relatively more weight to whether the action threatens a law imposed for environmental protection as opposed to a policy, but policies imposed for the protection of clean air, clean water, or species conservation, for example, may nonetheless be relevant in evaluating intensity. CEQ invites comment on the inclusion of policies in this provision and whether the regulations should reference specific categories of policies.  

§ 1501.3(d)(2)(x) (p. 46). CEQ proposes to add paragraph (d)(2)(x) to include effects upon the  rights of Tribal Nations reserved through treaties, statutes, or Executive Orders. This proposed addition would clarify that agencies should consider how an action may impact the reserved rights of Tribal Nations. Tribes’ ability to exercise these rights often depends on protection of the resources that support the rights, and agencies should consider impacts to such resources. CEQ specifically seeks comments from Tribes on this proposed addition.  

Lead Agency; Cooperating Agencies (§§ 1501.7 and 1501.8)  

§ 1501.7(b) (p. 60). CEQ proposes to retitle § 1501.7 “Lead Agency” to align with section 107(a) of NEPA. CEQ proposes to revise paragraph (b) regarding joint lead agencies for consistency with section 107(a)(1)(B) of NEPA to clarify that the participating Federal agencies may designate a Federal, State, Tribal, or local agency as a joint lead agency upon invitation to and acceptance by such agency. CEQ includes Federal agencies in the list of potential joint lead agencies because there are circumstances in which having another agency serving as a joint lead agency will enhance efficiency. CEQ does not read the text in section 107(a)(1)(B) of NEPA as precluding this approach, but rather Congress specified that State, Tribal, and local agencies may serve as joint lead agencies because they are ineligible to serve as the lead agency. CEQ invites comment on whether it should make additional changes to this paragraph.  

§ 1501.8(a) (p. 62). CEQ proposes an addition to § 1501.8 to clarify the meaning of the phrase “special expertise.” Paragraph (a) provides that a lead agency may request an agency with special expertise to serve as a cooperating agency. CEQ proposes to clarify in paragraph (a) that special expertise can include Indigenous Knowledge. This proposed change helps ensure that Federal agencies respect and benefit from unique knowledge that Tribal governments may bring to the environmental review process. CEQ notes that the Office of Science and Technology Policy and CEQ have issued a Guidance Memorandum for Federal Departments and Agencies on Indigenous Knowledge but does not define Indigenous Knowledge. CEQ invites comment on whether it should include such a definition in the regulations.