To: Indian Gaming Association Member Tribes From: Ernest L. Stevens, Jr., Chairman Jason C. Giles, Executive Director Re: Center on Environmental Quality Publishes Final Rule Amending NEPA Regulations Date: April 22, 2022 On April 20, 2022, the Center on Environmental Quality (“CEQ”) published a final rule in the Federal Register amending certain provisions of its regulations implementing the National Environmental Policy Act (“NEPA”) at 40 C.F.R. Parts 1502, 1507, and 1508. Generally, NEPA requires that federal agencies examine the potential environmental effects of proposed major federal actions that significantly affect the human environment, and then inform the public about those potential effects. NEPA has a unique impact on Tribal governments due to the discretionary authority of the Department of the Interior (“DOI”) and Bureau of Indian Affairs (“BIA”) to approve certain tribal transactions. As provided in the summary to this final rule, these revisions “generally restore provisions that were in effect for decades before being modified in 2020,” referring to the wholesale changes made to the NEPA regulations that became effective on September 14, 2020 (“2020 Rule”). This final rule will amend three (3) major provisions of the NEPA regulations, each briefly discussed below. It must also be noted that, as the entity with the authority to promulgate regulations implementing NEPA, the CEQ is taking a “phased approach” to its comprehensive review of current NEPA regulations, and further amendments are expected to occur at a later date. First, this final rule revises the requirements in 40 C.F.R. § 1502.13 for a purpose and need statement within an environmental impact statement (“EIS”). The purpose and need statement identifies an agency’s purpose for the proposed action and the need it serves. This statement is foundational to other elements of an EIS as it informs the range of reasonable alternatives that an agency must analyze and consider. This final rule eliminates the specific requirement added in the 2020 Rule that an agency base the purpose and need statement on the “goals of the applicant” and the “agency’s authority.” Now, agencies will again have discretion to consider a variety of factors when assessing an application for authorization, without necessarily being required to place the applicant’s goals above all other potentially relevant factors. In conjunction with this change, this final rule also amends the definition of “reasonable alternatives” in 25 C.F.R. § 1508.1 (z) by deleting the reference to “the goals of the applicant” in this definition. The “goals of the applicant” language was added to this definition by the 2020 Rule and the CEQ now believes that by tailoring the purpose and need to an applicant’s goals when considering a request for authorization may not be best practice. Specifically, this could prevent an agency from considering alternatives that will not meet an applicant’s stated goals, but may nevertheless better meet the policies and requirements of NEPA and the federal agency’s statutory authority and goals.
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