Environmental Analysis of Army Actions (AR 200-2)

<RULE> DEPARTMENT OF DEFENSE <SUBAGY>Department of the Army</SUBAGY> <CFR>32 CFR Part 651</CFR> <DEPDOC>[Docket ID: USA-2025-HQ-0003]</DEPDOC> <RIN>RIN 0702-AB02</RIN> <SUBJECT>Environmental Analysis of Army Actions (AR 200-2)</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of the Army, Department of Defense (DoD). <HD SOURCE="HED">ACTION:</HD> Interim final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This interim final rule rescinds the Department of the Army regulations implementing the National Environmental Policy Act (NEPA), because the Council on Environmental Quality's (CEQ) NEPA regulations, which they were meant to supplement, have been rescinded, and because the DoD is promulgating Department-wide NEPA procedures that will guide the Army's NEPA process. In addition, this interim final rule requests comments on this action and related matters. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This interim final rule is effective July 3, 2025. Comments must be received on or before August 4, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by docket number and/or Regulation Identifier Number (RIN) and title, by any of the following methods: • <E T="03">Federal eRulemaking Portal: https://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. <E T="03">Instructions:</E> All submissions received must include the agency name and docket number or RIN for this <E T="04">Federal Register</E> document. 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">https://www.regulations.gov</E> as they are received and without change, including any personal identifiers or contact information. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> David Guldenzopf, Ph.D., Director for Environmental Quality, Office of the Assistant Secretary of the Army for Installations, Energy and Environment, (571) 256-7822, <E T="03">david.b.guldenzopf.civ@army.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. We post all comments received before the close of the comment period on the following website as soon as possible after the comments have been received: <E T="03">https://www.regulations.gov.</E> Follow the search instructions on that website to view public comments. DoD will not post on <E T="03">https://www.regulations.gov</E> public comments that make threats to individuals or institutions, or that suggest the commenter will take actions to harm an individual. <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 651 provides guidance for implementing NEPA in the Army. It applies to the Department of the Army, including the Active Army, the Army Reserve, Joint Bases for which the Army is the lead component, the Army's acquisition process, functions of the Army National Guard involving Federal funding, and functions for which the Army is the DoD executive agent. This part does not apply to civil works functions of the U.S. Army Corps of Engineers or to combat or combat-related activities in a combat or hostile-fire zone. Title 32 CFR part 651 was intended to be used as a “supplement[ ] . . . in conjunction with” the regulations of the Council on Environmental Quality (CEQ) at 40 CFR parts 1500 through 1508. 32 CFR 651.1(c). However, the CEQ's regulations have been repealed, effective April 11. <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 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. The Army'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 Army recognized the need to update its regulations in light of these significant legislative changes. Since the Army's regulations were originally designed as a supplement to CEQ's NEPA regulations, the Army 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 Army's NEPA implementing procedures still unmodified more than two years after this significant legislative overhaul, it is exigent that the Army 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 its NEPA process. <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 [] prepar[ing] ever longer EISs for future projects.” <E T="03">Id.</E> at 1513. The Army, thus, is issuing this 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 the Army'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">see also 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;”) (internal quotation omitted); <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, which removes the upside of codification. 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, the Army is rescinding its NEPA implementing regulations at 32 CFR part 651. The Army is furthermore taking this action because the CEQ NEPA regulations, which the Army regulations were intended to supplement, have been rescinded and the Army regulations are incomplete on their own. The authority under which the CEQ regulations were promulgated, Executive Order (E.O.) 11991 (42 FR 26967, May 24, 1977), has been rescinded by E.O. 14154 (90 FR 8353, Jan. 29, 2025). Therefore, the Army is rescinding 32 CFR part 651 to conform to CEQ's rescission of its regulations. The Army intends to contin ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 26k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━