Revision of National Environmental Policy Act Implementing Procedures

<RULE> DEPARTMENT OF ENERGY <CFR>10 CFR Parts 205 and 1021</CFR> <DEPDOC>[DOE-HQ-2025-0026]</DEPDOC> <RIN>RIN 1990-AA52</RIN> <SUBJECT>Revision of National Environmental Policy Act Implementing Procedures</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of the General Counsel, Department of Energy. <HD SOURCE="HED">ACTION:</HD> Interim final rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This interim final rule substantially revises Department of Energy's (DOE) regulations containing its National Environmental Policy Act (NEPA) implementing procedures, which were promulgated to supplement now-rescinded Council on Environmental Quality regulations. Mindful that the Supreme Court recently clarified NEPA is a “purely procedural statute,” DOE will henceforth maintain the remainder of its procedures in a procedural guidance document separate from the Code of Federal Regulations (DOE NEPA implementing procedures). Thus, DOE is revising 10 CFR part 1021 to contain only administrative and routine actions excepted from NEPA review in appendix A, its existing categorical exclusions in appendix B, related requirements, and a provision for emergency circumstances. DOE is revising appendix A in 10 CFR part 1021 to align with DOE's new NEPA implementing procedures that it is publishing separate from the Code of Federal Regulations. Appendix A in 10 CFR part 1021 (formerly categorical exclusions) are now administrative and routine actions that do not require NEPA review. DOE is also revising 10 CFR part 205, subpart W, to remove the NEPA procedures from its Presidential permit regulations. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This interim rule is effective July 3, 2025. Comments are due by August 4, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Documents relevant to this rulemaking are posted on the Federal eRulemaking Portal at <E T="03">https://www.regulations.gov</E> (Docket: DOE-HQ-2025-0026). Documents posted to this docket include: this interim final rule; and two “redline/strikeout” (markup) files indicating the changes in this interim final rule for 10 CFR parts 205 and 1021. Submit comments, labeled “Revision of DOE NEPA Implementing Regulations, RIN 1990-AA52,” using the <E T="03">Federal eRulemaking Portal: www.regulations.gov.</E> <E T="03">Instructions:</E> All submissions must include the agency name, “Department of Energy,” and docket number, DOE-HQ-2025-0026, for this rulemaking. All comments received will be posted without change to <E T="03">www.regulations.gov,</E> including any personal information provided. Do not submit any information you consider to be private, Confidential Business Information (CBI), or other information whose disclosure is restricted by statute. <E T="03">Docket:</E> For access to the docket to read comments received, go to <E T="03">www.regulations.gov.</E> <E T="03">DOE NEPA procedures:</E> DOE's new NEPA implementing procedures are available at <E T="03">https://energy.gov/nepa.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Carrie Abravanel, Office of NEPA Policy and Compliance, at <E T="03">DOE-NEPA-Rulemaking@hq.doe.gov</E> or (202) 586-4600 or Office of NEPA Policy and Compliance, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Introduction</FP> <FP SOURCE="FP1-2">A. National Environmental Policy Act</FP> <FP SOURCE="FP1-2">B. DOE NEPA Implementing Procedures and Regulations</FP> <FP SOURCE="FP1-2">C. Changes Made in This Interim Final Rule</FP> <FP SOURCE="FP-2">II. Basis for Revising DOE's NEPA Implementing Regulations</FP> <FP SOURCE="FP-2">III. Basis for Issuing an Interim Final Rule</FP> <FP SOURCE="FP1-2">A. Notice-and-Comment Rulemaking Is Not Required</FP> <FP SOURCE="FP1-2">B. DOE Has Good Cause for Proceeding With an Interim Final Rule</FP> <FP SOURCE="FP1-2">C. DOE Solicits Comments</FP> <FP SOURCE="FP-2">IV. Procedural Requirements</FP> <FP SOURCE="FP1-2">A. Executive Orders 12866 and 13563</FP> <FP SOURCE="FP1-2">B. Regulatory Flexibility Act</FP> <FP SOURCE="FP1-2">C. National Environmental Policy Act</FP> <FP SOURCE="FP1-2">D. Executive Order 13132</FP> <FP SOURCE="FP1-2">E. Executive Order 13175</FP> <FP SOURCE="FP1-2">F. Executive Order 13211</FP> <FP SOURCE="FP1-2">G. Unfunded Mandates Act of 1995</FP> <FP SOURCE="FP1-2">H. Paperwork Reduction Act</FP> <FP SOURCE="FP1-2">I. Executive Orders 14154 and 14192</FP> <FP SOURCE="FP1-2">J. Congressional Notification</FP> <FP SOURCE="FP-2">VI. Approval of the Office of the Secretary</FP> </EXTRACT> <HD SOURCE="HD1">I. Introduction</HD> The Department of Energy (DOE) is issuing this interim final rule to remove its existing implementing regulations for the National Environmental Policy Act of 1969, <E T="03">et seq.,</E> as amended (NEPA). DOE's existing NEPA implementing regulations were promulgated as a “supplement[ ] . . . to be used in conjunction with,” 10 CFR 1021.100, the Council on Environmental Quality's (CEQ's) NEPA regulations. DOE also “adopt[ed]” the CEQ's regulations by incorporation. 10 CFR 1021.103. But the CEQ's regulations have been repealed, effective April 11. <E T="03">See Removal of National Environmental Policy Act Implementing Regulations</E> (Feb. 25, 2025). Moreover, in Executive Order (E.O.) 14154, <E T="03">Unleashing American Energy</E> (90 FR 8353; January 29, 2025), 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. DOE'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. Not only that, but Congress recently amended NEPA in significant part in the Fiscal Responsibility Act of 2023 (FRA), in which Congress increased the length of Title I of NEPA by more than 300%, providing much detail on procedural issues, which CEQ and individual acting agencies had previously needed to address in their own procedures. With DOE's NEPA implementing procedures still unmodified more than two years after this significant legislative overhaul, it is exigent that DOE move quickly to conform its procedures to the statute as amended. Finally, the Supreme Court has recently issued its decision in <E T="03">Seven County Infrastructure Coalition</E> v. <E T="03">Eagle County, Colorado,</E> 145 S. Ct. 1497 (2025), in which it described the “transform[ation]” of NEPA “from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects.” <E T="03">Id.</E> at 1507, 1513. 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 1513-1514. 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. DOE, thus, is 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. DOE's procedures for implementing the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 <E T="03">et seq.,</E> as amended, are contained principally in 10 CFR part 1021. Additional DOE NEPA procedures are contained in 10 CFR part 205, subpart W. These procedures in 10 CFR part 205, subpart W specifically relate to applications for a Presidential permit authorizing the construction, connection, operation, and maintenance of facilities for transmission of electric energy at international boundaries under E.O. 10485 (18 FR 5397; September 3, 1953), as amended by E.O. 12038 (43 FR 4957; February 3, 1978). DOE is issuing this interim final rule to revise 10 CFR part 1021 so that it includes only DOE's existing categorical exclusions in appendix B, related requirements, and a provision for emergency circumstances; and to remove NEPA procedures from 10 CFR part 205, subpart W. Other than these few provisions, DOE's procedures will henceforth be contained in the <E T="03">U.S. Department of Energy National Environmental Policy Act (NEPA) Implementing Procedures,</E> a copy of which is reprinted below for explanatory purposes only (and will not codified in the CFR). The procedures are intended to be non-binding guidance. 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 Seven County,</E> 145 S. Ct. 1507 (“NEPA is a purely procedural statute.”); <E T="03">see 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 unders ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 346k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━