Staff Presentation on Categorical Exclusions under the National Environmental Policy Act (RM21-10-000)

Good morning, Mr. Chairman and Commissioners.

Item C-1 is a Notice of Inquiry that solicits comments on categorical exclusions listed in other agencies’ National Environmental Policy Act procedures that the Commission should consider adopting and on any new categorical exclusions the Commission should consider establishing. This Notice of Inquiry is a first step toward complying with the Council on Environmental Quality’s July 15, 2020 final rule, which directs agencies to propose revisions to their NEPA procedures consistent with the final rule by September 14, 2021. This Notice of Inquiry will assist the Commission in informing its decision making and allowing for public participation as the Commission considers revising its regulations implementing NEPA.

Pursuant to NEPA, Federal agencies are required to prepare an environmental impact statement for major Federal actions that may have a significant impact on the human environment. According to CEQs regulations implementing NEPA, agencies must prepare an environmental assessment for those actions that are not likely to have significant effects or for which the significance of the effects is unknown.

CEQ’s regulations also direct agencies to identify categories of actions that normally do not have a significant effect on the human environment (these are referred to as categorical exclusions). An agency is permitted to not prepare an environmental impact statement or environmental assessment for proposed actions covered by the agency’s existing categorical exclusions, unless extraordinary circumstances apply in which a normally excluded action may have a significant effect on the environment.

The Commission has established thirty-six categorical exclusions through two prior rulemakings issued in 1987 and 2005.

CEQ has consistently supported the appropriate use and review of categorical exclusions consistent with the purposes of NEPA. Section 1507.3 of the 1978 CEQ regulations directed agencies to “continue to review their policies and procedures and in consultation with the Council to revise them as necessary to ensure full compliance with the purposes.”

CEQ’s Categorical Exclusion Guidance Document, issued in 2010, provides that “[t]he use of categorical exclusions can reduce paperwork and delay, so that EAs or EISs are targeted toward proposed actions that truly have the potential to cause significant environmental effects.” The Guidance Document also states that “[a]gencies may also identify potential new categorical exclusions after the agencies have performed NEPA reviews of a class of proposed actions and found that, when implemented, the actions resulted in no significant environmental impacts.” The Guidance Document also encourages agencies to periodically review their categorical exclusions.

On July 15, 2020, CEQ issued a final rule updating its regulations implementing NEPA. CEQ’s final rule provides, in part, that an agency may establish a process that allows it to use a categorical exclusion listed in another agency’s NEPA procedures after consulting with that agency to ensure the use of the categorical exclusion is appropriate.

As a first step in identifying Commission NEPA regulations that may be updated, and consistent with past CEQ guidance, this Notice of Inquiry will gather information on categorical exclusions to determine whether it should adopt other agency’s categorical exclusions and establish new categorical exclusions.

First, the Commission is considering a process by which it would consult with other agencies and apply their categorical exclusions to the Commission’s proposed actions. The NOI solicits comments on five categorical exclusions of other agencies that the Commission may consider adopting for its own use. Those include:

• Department of Commerce’s categorical exclusion on new construction upon or improvement of land where certain conditions are met, including the site is in a developed area and/or a previously disturbed site.
• National Park Service’s categorical exclusion on changes or amendments to an approved plan, when such changes would cause no or only minimal environmental impact.
• Department of Transportation’s categorical exclusion on project amendments (e.g., increases in costs) which do not significantly alter the environmental impact of the action.
• Department of the Interior’s categorical exclusion on policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too speculative to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.
• Department of Energy’s categorical exclusion on rulemakings interpreting or amending an existing rule or regulation that do not change the environmental effect of the rule or regulation being amended.

The NOI also solicits comments on any other categorical exclusions of agencies that the Commission may want to consider adopting.

Second, the NOI seeks comments on whether the Commission should consider establishing any new categorical exclusions and, if so, what actions any new categorical exclusions should cover. The NOI lists examples of certain Commission actions that do not normally affect the environment, but that are not explicitly covered by one of the Commission’s existing categorical exclusions, including but not limited to modifications to certificated capacity that involve no construction or ground disturbance, modifications to export/import volumes at border crossing facilities if there are no changes to the facilities, and rate amendments. The NOI solicits comments on whether the Commission should adopt new categorical exclusions to cover these actions.