Second, the CEQ is revising 40 C.F.R. § 1507.3 to remove language that could be interpreted to limit agencies’ flexibility to develop or revise procedures to implement NEPA specific to their programs and functions that may go beyond the CEQ regulatory requirements. Under NEPA regulations, agencies are required to develop their own NEPA procedures to integrate NEPA reviews into their own decision-making processes. Historically, some agencies have adopted NEPA processes that are nearly identical to those in the NEPA regulations, while other agencies have adopted procedures that tailor the NEPA process to the specific contexts in which those agencies operate. However, the 2020 Rule created a “ceiling provision” which made the NEPA regulations promulgated by the CEQ the maximum requirements agencies could include in their own agency procedures. The final rule here removes the “ceiling provision” with the intended purpose to allow agencies to exercise their discretion to develop and implement procedures beyond the NEPA regulations, so long as such agency procedures do not conflict with NEPA regulations. Finally, this final rule revises the definition of “effects” in 40 C.F.R. § 1508.1 (g) to include direct, indirect, and cumulative effects. NEPA requires federal agencies to examine the environmental effects of their proposed actions and alternatives and any adverse environmental effects that cannot be avoided if the proposed action is implemented. The 2020 Rule made several efforts to narrow which effects needed to be considered by a federal agency by modifying the definition of “effects” or “impacts” and by explicitly repealing the definition of “cumulative impact.” From 1978 up until when the 2020 Rule came into effect, federal agencies were required to consider the cumulative impact of their actions – or the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. Now, under the final rule, agencies must once again fully consider the reasonably foreseeable direct, indirect, and cumulative effects their actions have on the human environment. This final rule is effective on May 20, 2022 . The Final Rule, as published in the Federal Register can be found here: https://www.federalregister.gov/documents/2022/04/20/2022-08288/national-environmental- policy-act-implementing-regulations-revisions#citation-1-p23453. Please contact Danielle Her Many Horses at dhermanyhorses@indiangaming.org with any questions or concerns regarding this Alert.
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