Dear USET/USET SPF Family,
On May 1, 2024, the Council on Environmental Quality (CEQ) published a Final Rule in the Federal Register on Phase 2 revisions to the National Environmental Policy Act (NEPA) implementing regulations. Initiated in 2021, CEQ has concluded a multiphase rulemaking to revise regulations to improve implementation of NEPA by restoring regulations promulgated in 1978 that were amended in 2020 under President Trump’s Administration. Following President Biden’s Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis”, the White House identified the 2020 NEPA regulations for CEQ review for consistency with E.O. 13990.
On October 7, 2024, CEQ initiated a NEPA Phase 1 Notice of Proposed Rulemaking, which proposed to restore provisions addressing the purpose and need of a proposed action, agency procedures for implementing CEQ's NEPA regulations, and the definition of “effects.” USET SPF submitted comments
to CEQ in response to the NPRM on November 22, 2021 expressing general support for these revisions to NEPA to improve efficiency and effectiveness, but asserted that such revisions must not be pursued at the expense of Tribal sovereignty, public health, and cultural lifeways. USET SPF also advocated for the revision of “effects” to include direct, indirect, and cumulative effects when federal agencies are examining the environmental effects of proposed actions and alternatives under NEPA. On April 20, 2022, CEQ issued a Final Rule on Phase 1 revisions to the NEPA implementing regulations and restored “direct, indirect, and “cumulative effects” as part of the definition of “effects” to better reflect NEPA's statutory purpose, policy, and intent, and to be consistent with case law interpreting NEPA.
On July 31, 2023, CEQ initiated a Phase 2 Notice of Proposed Rulemaking to further revise NEPA regulations as well as implement amendments under the Fiscal Responsibility Act of 2023 (P.L. 118-5). USET SPF submitted comments
to CEQ on September 29, 2023 expressing general support for the proposed revisions, but expressed concern regarding a proposal to define what constitutes Indigenous Knowledge and the persistent lack of funding for technical assistance for Tribal Nations to participate in the NEPA process. In its Final Rule, CEQ decided not to define Indigenous Knowledge and instead stated that agencies must exercise flexibility to incorporate Indigenous Knowledge in agency research, policies, and decision-making processes. CEQ also agreed with USET SPF’s recommendation that federal agencies rely on its November 2022, “Guidance for Federal Departments and Agencies on Indigenous Knowledge”, to direct federal agencies on incorporating Indigenous Knowledge into federal decision-making processes. CEQ further adopted an addition to paragraph (a) of § 1501.8 of the NEPA regulations to clarify the meaning of the phrase “special expertise” to include the use and incorporation of Indigenous Knowledge in the NEPA review process.
Since the 2020 amendments to NEPA’s implementing regulations, which were unchanged for decades, USET SPF has advocated for the reinstitution of the prior 1978 regulations to remove discrepancies in federal agency interpretation and implementation of NEPA for federal actions and activities affecting Tribal lands, resources, and cultural lifeways. We are pleased that CEQ’s multiphase rulemaking to revise the NEPA regulations has reinstated many of the 1978 regulations as well as provided additional clarification for Tribal Nation input and participation in the NEPA review process. USET SPF will continue to advocate for sensible and pragmatic updates to NEPA so long as such revisions do not disregard Tribal sovereignty and protect our public health, safety, lands, and cultural lifeways.
For more information, please contact Brian Howard, USET SPF Senior Policy Analyst, at bhoward@usetinc.org.
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