Removal of Environmental Impact Analysis Process (EIAP) Regulation

<RULE> DEPARTMENT OF DEFENSE <SUBAGY>Department of the Air Force</SUBAGY> <CFR>32 CFR Part 989</CFR> <DEPDOC>[Docket ID: USAF-2025-HQ-0003]</DEPDOC> <RIN>RIN 0701-AA97</RIN> <SUBJECT>Removal of Environmental Impact Analysis Process (EIAP) Regulation</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of the Air Force, Department of Defense (DoD). <HD SOURCE="HED">ACTION:</HD> Interim final rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The DAF is rescinding its National Environmental Policy Act (NEPA) regulations because the Council on Environmental Quality's (CEQ) NEPA regulations, which they were meant to supplement, have been rescinded, and because the DoD is promulgating Department-wide NEPA procedures that will guide DAF's NEPA process. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This interim final rule is effective July 1, 2025. Comments must be received on or before July 31, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by docket number and/or Regulation Identifier Number (RIN), by any of the following methods: • <E T="03">Federal eRulemaking Portal: http://www.regulations.gov.</E> Follow the instructions for submitting comments. • <E T="03">Mail:</E> Department of Defense, Office of the Assistant to the Secretary of Defense for Privacy, Civil Liberties, and Transparency, Regulatory Directorate, 4800 Mark Center Drive, Mailbox #24, Suite 05F16, Alexandria, VA 22350-1700. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the internet at <E T="03">http://www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Jack Bush at 703-695-1773 or by email at <E T="03">af.a4c.nepaworkflow@us.af.mil.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <E T="03">Inspection of Public Comments:</E> All comments received before the close of the comment period are available for viewing by the public at <E T="03">http://www.regulations.gov.</E> Comments are posted as soon as possible after they have been received. Follow the search instructions on that website to view public comments. DAF will not post public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm an individual. DAF will post acceptable substantive comments from multiple unique commenters. <E T="03">Plain Language Summary:</E> In accordance with 5 U.S.C. 553(b)(4), a plain language summary of this rule may be found at <E T="03">https://www.regulations.gov/.</E> <HD SOURCE="HD1">I. Background</HD> Title 32 CFR part 989 provides guidance for implementing the procedural provisions of NEPA and was drafted to supplement the CEQ regulations at 40 CFR parts 1500 through 1508. <E T="03">See</E> 32 CFR 989.1(b). The DAF regulation is applicable to all DAF activities and organizations. However, the CEQ's regulations have been repealed, effective April 11, 2025. <E T="03">See Removal of National Environmental Policy Act Implementing Regulations,</E> (90 FR 10610; Feb. 25, 2025). This action was necessitated by and is consistent with Executive Order (E.O.) 14154, <E T="03">Unleashing American Energy</E> (90 FR 8353; January 20, 2025), in which President Trump rescinded President Carter's E.O. 11991, <E T="03">Relating to Protection and Enhancement of Environmental Quality</E> (42 FR 26967; May 24, 1977), which was the basis CEQ had invoked for its authority to make rules to begin with. DAF's regulations, which were a “supplement[] . . . to be used in conjunction with” those CEQ regulations, thus stand in obvious need of fundamental revision. President Trump in E.O. 14154 further directed agencies to revise their NEPA implementing procedures, consistent with the E.O., including its direction to CEQ to rescind its regulations. In addition, Congress recently amended NEPA in significant part, in the Fiscal Responsibility Act of 2023 (FRA), Public Law 118-5, signed on June 3, 2023, in which Congress added substantial detail and direction in Title I of NEPA, including in particular on procedural issues that CEQ and individual acting agencies had previously addressed in their own procedures. The DAF recognized the need to update its regulations in light of these significant legislative changes. Since the DAF's regulations were originally designed as a supplement to CEQ's NEPA regulations, the DAF had been awaiting CEQ action before revising its regulations, consistent with CEQ direction. <E T="03">See</E> 40 CFR 1507.3(b) (2024); <E T="03">see also</E> 86 FR 34154 (June 29, 2021). However, with CEQ's regulations now rescinded, and with the DAF's NEPA implementing procedures still unmodified more than two years after this significant legislative overhaul, it is exigent that the DAF move quickly to conform its procedures to the statute as amended. Finally, the Supreme Court on May 29, 2025 issued a landmark decision, <E T="03">Seven County Infrastructure Coalition</E> v. <E T="03">Eagle County, Colorado,</E> 145 S. Ct. 1497 (2025), in which it decried the “transform[ation]” of NEPA from its roots as “a modest procedural requirement,” into a significant “substantive roadblock” that “paralyze[s]” “agency decisionmaking.” <E T="03">Id.</E> at 1507, 1513 (quotations omitted). The Supreme Court explained that part of that problem had been caused by decisions of lower courts, which it rejected, issuing a “course correction” mandating that courts give “substantial deference” to reasonable agency conclusions underlying their NEPA processes. <E T="03">Id.</E> at 1513-14. But the Court also acknowledged, and through its course correction sought to address, the effect on “litigation-averse agencies” which, in light of judicial “micromanage[ment],” had been “tak[ing] ever more time and . . . prepar[ing] ever longer EISs for future projects.” <E T="03">Id.</E> at 1513. The DAF is therefore issuing this Interim Final Rule (IFR) to align its actions with the Supreme Court's decision and streamline its process of ensuring reasonable NEPA decisions. This revision has thus been called for, authorized, and directed by all three branches of government at the highest possible levels. DoD has elected to respond to these instructions by promulgating Department-wide NEPA procedures, <E T="03">Department of Defense National Environmental Policy Act Implementing Procedures,</E> which will guide DAF's NEPA process henceforth. The Supreme Court could not have been clearer in <E T="03">Seven County</E> that NEPA is a procedural statute. <E T="03">See</E> 145 S.Ct. at 1507 (“NEPA is a purely procedural statute.”); <E T="03">id.</E> at 1510 (“NEPA is purely procedural. . . . NEPA `does not mandate particular results, but simply prescribes the necessary process' for an agency's environmental review of a project;”); <E T="03">id.</E> at 1511 (NEPA is a <E T="03">purely procedural statute”</E> ); <E T="03">id.</E> at 1513 (NEPA is properly understood as “a modest procedural requirement”); <E T="03">id.</E> at 1514 (“NEPA's status as a purely procedural statute”); <E T="03">see also id.</E> at 1507 (“Simply stated, NEPA is a procedural cross-check, not a substantive roadblock.”). Mindful of this, DOD has decided that the flexibility to respond to new developments in this fast-evolving area of law, afforded by using non-codified procedures, outweighs the public-transparency virtues of codifying its regulations going forward. Notably, DoD can—and will—ensure that accessibility to the public by posting these procedures online, retaining the transparency virtues. By contrast, not codifying its procedures will enable it to rapidly update these procedures in response to future court decisions (such as <E T="03">Seven County</E> ), Presidential directives, or the needs of the services. The use of non-codified procedures is, moreover, consistent with the approach that several other Federal agencies have used for decades. DoD has, correspondingly, directed all military departments to repeal their respective NEPA implementing regulations by June 30, 2025, per a May 21, 2025, memorandum. Thus, with this action, the DAF rescinds its NEPA implementing regulations at 32 CFR part 989. The DAF is furthermore taking this action because the CEQ NEPA regulations, which the DAF regulations supplemented, were repealed effective April 11, 2025. The DAF is rescinding its NEPA regulations to avoid confusion from maintaining a regulation that was drafted to supplement a regulation that has now been revoked. The DAF intends to continue to rely on categorical exclusions previously published in appendix B of 32 CFR part 989 or adopted by public notice in the <E T="04">Federal Register</E> ( <E T="03">e.g.,</E> 89 FR 92911), all of which have now been incorporated into the Appendix to <E T="03">Department of Defense National Environmental Policy Act Implementing Procedures.</E> DAF acknowledges that third parties may claim to have reliance interests in DAF's existing NEPA procedures. Moreover, as the Supreme Court has just explained, NEPA “is a purely procedural statute” that “imposes no substantive environmental obligations or restrictions.” <E T="03">Seven County,</E> 145 S. Ct. at 1507. Any asserted reliance interests grounded in substantive environmental concerns are not in accord with the best meaning of the law and are entitled to “no . . . weight.” <E T="03">Dep't of Homeland Sec.</E> v. <E T="03">Regents of the Univ. of California,</E> 140 S. Ct. 1891, 1914 (2020). Because reliance interests are inherently backward-looking, it is unclear how any party could assert reliance interests in <E T="03">prospective</E> procedures. To the extent such interests exis ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 25k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━