Docket No. CEQ August 20, the Council on Environmental Quality s (CEQ) advance notice of proposed rulemaking (ANPR)

Transcription

1

2

3 Page 1 COMMENTS OF THE EDISON ELECTRIC INSTITUTE ON UPDATE TO THE REGULATIONS FOR IMPLEMENTING THE PROCEDURAL PROVISIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT Docket No. CEQ The Edison Electric Institute (EEI) appreciates the opportunity to submit comments on the Council on Environmental Quality s (CEQ) advance notice of proposed rulemaking (ANPR) to Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act. 83 Fed. Reg. 28,591 (June 20, 2018). EEI supports a more efficient, timely and coordinated National Environmental Policy Act (NEPA) process that will facilitate the evaluation of management decisions and the environmental effects of proposed federal agency actions. EEI is the association that represents all U.S. investor-owned electric companies. Our members provide electricity for 220 million Americans and operate in all 50 states and the District of Columbia. As a whole, the electric power industry supports more than 7 million jobs in communities across the United States. In addition to our U.S. members, EEI has more than 60 international electric companies, with operations in more than 90 countries, as International Members, and hundreds of industry suppliers and related organizations as Associate Members. Driven by a number of factors including customer demands, technology developments, and federal and state regulatory obligations the electric sector is undergoing a transformation of its generating fleet that will continue over the next decade and beyond. Concurrent with this transition, EEI member companies are investing significant amounts of capital estimated at more than 120 billion dollars in 2017 alone to make the energy grid smarter, cleaner, more dynamic, more flexible, and more secure in order to integrate and deliver a balanced mix of 1

4 Page 2 resources from both central and distributed energy resources to customers. Overall, the industry s infrastructure investments are additionally beneficial in that they provide domestic job opportunities. Safe, reliable, affordable and clean energy powers the economy, promotes national energy independence, and enhances the lives of all Americans. EEI s members engage in a variety of infrastructure investment activities related to generating and delivering electricity that require federal permits and authorizations that can trigger NEPA environmental reviews. The current permitting process often involves multiple federal agencies with separate decision-making authority engaging in uncoordinated and sequential NEPA reviews. This lack of interagency cooperation, the absence of firm deadlines, and scarce federal resources have resulted in lengthy timeframes and costly review processes for project proponents. This creates inefficiencies in environmental protection, review and permitting decisions, which increases project costs and delays much needed energy infrastructure investments. Introduction The Administration already has signaled through two Executive Orders (EOs), and 13766, that it wants agencies to improve their NEPA review processes. To comply with EO 13807, CEQ issued a list of initial actions it planned to take to streamline NEPA reviews. The list of actions included a review of its existing regulations, a plan for infrastructure-specific NEPA guidance, a possible expansion of categorical exclusions (CEs), and a requirement for agencies identified as too slow to develop their own action plans to streamline reviews. Additionally, a number of agencies have committed, through an April 9, 2018 interagency memorandum of understanding (MOU), to establish a cooperative relationship for the timely processing of environmental reviews and authorization decisions for proposed major infrastructure projects under a One Federal Decision (OFD) policy established in EO

5 Page 3 The OFD policy directs federal agencies to work together to simplify the federal permitting process, including associated NEPA reviews, by designating a lead agency, agreeing on the scope of NEPA review and alternatives to be considered, setting and honoring a unified schedule for the review, and preparing a consolidated NEPA review document rather than parallel separate documents. 1 At the individual-agency level, the Department of the Interior (DOI) has taken a lead role in improving its own internal NEPA review processes. Deputy Secretary Bernhardt issued Secretarial Order No specifying steps agencies within DOI should take to streamline the process, including setting page and time limits for NEPA-mandated environmental impact statements (EISs). In addition, Congress has acted on the issue of improving the NEPA review process. In Title 41 of Fixing America s Surface Transportation Act (FAST-41), Congress created a new governance structure, set of procedures, and funding authorities designed to improve the timeliness, predictability, and transparency of the federal environmental review and authorization process for major infrastructure projects. EEI encourages CEQ to build on these congressional and administration initiatives as it proposes revisions to the NEPA implementing regulations. CEQ regulations provide a fundamental framework for how other federal agencies implement the procedural provisions of NEPA. CEQ guidance documents also educate the agencies on ways to simplify and streamline their NEPA review processes. Further improvements in NEPA implementation can and should be identified as CEQ updates its regulations and guidance, with a goal of clarifying and streamlining the overall process. 1 Memorandum of Understanding Implementing One Federal Decision Under Executive Order 13807, available at (April 9, 2018) 3

6 Page 4 CEQ s NEPA regulations should require federal agencies involved in permitting a project to prepare and to rely on a single environmental review document and a single record of decision (ROD) coordinated by the lead agency. The goal should be to avoid individual agencies having to create their own duplicative or complementary NEPA documents, but instead to rely on a single document, while keeping the document properly narrowed in scope to the federal action being undertaken and focused on the area of the proposed environmental impact. Ensuring that agencies apply a proper scope of analysis is central to ensuring that a NEPA review is efficient, effective, and appropriately tailored to best inform the agency action under review. Only alternatives that are capable of being implemented by the project proponent, technically feasible, and cost-efficient should be proposed. Further, the level of analysis required should be commensurate with the proposed action taken. Where appropriate, CEQ should encourage the use of CEs, environmental assessments (EAs), and findings of no significant impact (FONSIs), and reserve the use of an EIS to cases where the level of environmental impacts rise to such review. CEQ s proposed changes to its NEPA regulations also should affirmatively set appropriate page limits and time frames for environmental reviews, with consequences for agencies that do not adhere to those requirements. EEI encourages CEQ to undertake a rulemaking to modify its NEPA regulations to revise, modernize, and streamline the environmental review process. These critical revisions will focus limited agency resources on the most pertinent environmental issues, reduce duplication where appropriate, and provide more certainty to the public, which relies on EEI members activities to provide safe, reliable, affordable and increasingly clean energy to consumers. 4

7 Page 5 EEI offers the following comments in response to the questions CEQ has posed on potential revisions to update the regulations and ensure a more efficient, timely, and effective process consistent with the national environmental policy stated in NEPA: NEPA Process 1. Should CEQ's NEPA regulations be revised to ensure that environmental reviews and authorization decisions involving multiple agencies are conducted in a manner that is concurrent, synchronized, timely, and efficient, and if so, how? Currently, NEPA mandated reviews may involve multiple agencies with jurisdiction or authorization over the same project. Agencies are encouraged, but not required, to work concurrently and prepare joint analyses. CEQ s NEPA regulations should require the lead federal agency for a proposed project to coordinate and facilitate a single environmental review and ROD. The goal should be to avoid individual agencies creating their own duplicative or complementary NEPA documents and to synchronize their analyses, so the reviews can be consolidated into a single EA or EIS in a timely manner. While requiring a single, consolidated environmental review document can reduce the potential for delay, some EEI members have experienced situations where this is not the case. In practice, each federal agency can have different interpretations of the same CEQ NEPA regulations that end up causing delays and sometimes result in unresolvable conflicts. There should be a single NEPA implementation and compliance process with clear consistent guidelines for all the agencies to follow. This would obviate the need to reconcile differing agency approaches to NEPA implementation. EEI suggests that CEQ provide more clarity in their NEPA regulations regarding how agencies interpret and reconcile NEPA requirements when more than one agency is involved to ensure uniform compliance with the policies and procedural requirements of NEPA. CEQ should specify that the lead agency is to make final 5

8 Page 6 decisions on NEPA review issues, such as scope and timing, and other agencies are to follow the lead agency s decisions. 2. Should CEQ's NEPA regulations be revised to make the NEPA process more efficient by better facilitating agency use of environmental studies, analysis, and decisions conducted in earlier Federal, State, tribal or local environmental reviews or authorization decisions, and if so, how? EEI supports the concept of improving the NEPA review process by incorporating, where appropriate, environmental studies and analyses conducted, and decisions made, during earlier federal, state, tribal and local public reviews. Requiring the lead agency to both consider and incorporate, where appropriate, current and relevant information from such earlier reviews would prevent duplicative processes and would ensure that the agency preparing the ultimate NEPA document has a comprehensive picture of the underlying purpose and need of the action, as well as access to relevant and specific information gathered or obtained by federal, state, and local agencies and tribes with particular expertise in the matter. CEQ s current regulations do encourage agencies to build off environmental reviews that already have been conducted, rather than redoing the reviews. CEQ should continue to encourage and require tiering off prior work, such as programmatic EISs, by directing agencies to cross reference earlier work rather than restating it, and perhaps by compiling a library of such earlier decisions and work for agencies to cite. However, EEI members have experienced that there is a level of misunderstanding within the federal agencies and project consultants on how to tier, what tiering means, in what circumstances tiering is appropriate, and how tiering differs from incorporation by reference. Tiering is a process by which an agency can reduce and eliminate repeating content of a NEPA document that already appears, or will appear, in another of the agency s NEPA 6

9 Page 7 documents. It allows an agency to avoid duplication of paperwork through the incorporation by reference of the general discussions and relevant specific discussions from an EIS of broader scope into one of lesser scope or vice versa. The analysis is then focused on a regional or project-specific setting, impacts and mitigation measures. The tiering process could make each broader EIS more useful and meaningful to the public as the plan or program develops, by referring to earlier work without duplicating the analysis prepared for the previous impact statement. EEI suggests that CEQ add in its regulations more guidance and clarity on tiering and how it can be used effectively. 3. Should CEQ's NEPA regulations be revised to ensure optimal interagency coordination of environmental reviews and authorization decisions, and if so, how? CEQ should encourage the development and use of processes that ensure optimal interagency coordination of environmental reviews. This can be done by giving the lead agency a stronger role in the overall coordination, execution, and timing of the environmental review document. While the lead federal agency has the responsibility for overall coordination with the cooperating agencies, roles and responsibilities for each agency could be more clearly defined. For example, the lead federal agency should set a schedule for the development of a single environmental review document, with all agencies agreeing to a permitting timetable, including completion dates for the ROD and any federally required authorizations for the project. Once the lead agency has been appointed, CEQ should require other agencies with decision-making authority to cooperate with that agency in the NEPA review process, including scoping, identification of issues and alternatives, timing of decisions, and compilation of the environmental review document. Early coordination between the lead agency and cooperating agencies on major milestones in the environmental review process can prevent schedule delays. 7

10 Page 8 The lead agency also should confine the scope of comments from cooperating and coordinating federal agencies within the development of the NEPA review to only those matters that are within the agency s special expertise, regulatory control or jurisdiction, and the lead agency should be responsible for resolving interagency disputes when they arise. For projects involving multiple federal agencies, the lead agency process for NEPA compliance should be followed by the cooperating agencies. Instituting measures such as these will facilitate an optimal interagency relationship, allowing the environmental review to jointly and cooperatively progress, leading to more efficient authorization decisions. Scope of NEPA Review 4. Should the provisions in CEQ's NEPA regulations that relate to the format and page length of NEPA documents and time limits for completion be revised, and if so, how? It would be appropriate for the NEPA review process to be shortened and the complexity and length of NEPA documents reduced. As noted earlier, Secretarial Order No is an illustrative example of how page limits and timeframes can be set for EISs. The Order directed that all EISs for which a DOI bureau is the lead agency are not to exceed 150 pages (or 300 pages for unusually complex projects) excluding appendices. It further directed that each DOI agency shall have a target to complete each final EIS within one year from the issuance of a Notice of Intent (NOI) to prepare an EIS. DOI subsequently issued guidance directing that all EAs for which a DOI bureau is a lead agency should be no more than 75 pages, excluding appendices, and should be completed within 180 calendar days of the commencement date. Similarly, CEQ should appropriately reduce time frames for completing work on NEPA reviews, both for EISs and EAs, while allowing agencies to tailor the schedule as a function of the complexity of the project and reviews involved. However, reducing the environmental 8

11 Page 9 review document lengths may encourage agencies to expand the size of appendices. Any CEQ change in NEPA regulations should ensure this does not occur. 5. Should CEQ's NEPA regulations be revised to provide greater clarity to ensure NEPA documents better focus on significant issues that are relevant and useful to decisionmakers and the public, and if so, how? NEPA documents ideally provide an environmental analysis for actions that create a significant and permanent environmental impact, with attendant alternatives for avoiding, reducing, or mitigating those effects while accomplishing the project s objectives. It is critical to the NEPA process that the principal analysis of the proposed action under review is properly tailored to impacts directly under the agency s control. The level of analysis determined in the required scoping process should be commensurate with the proposed action to ensure that agencies do not unnecessarily analyze impacts beyond their regulatory control. By keeping the process focused properly on direct, long-term environmental impacts and workable solutions, CEQ would help improve the clarity of the process and avoid analysis beyond the project footprint. EEI recommends that CEQ also provide additional direction and clarity around how to identify the appropriate area of analysis and significant or key issues of a project to ensure consistent implementation of the regulations. NEPA regulations should direct that, once the list of key issues is identified, additional issues should not be added unless there is very good reason and need to do so. CEQ should incorporate in the NEPA regulations one or more provisions that would provide federal agencies the tools to focus NEPA analyses and documents on issues that are both significant and relevant to the agency decision. 9

12 Page Should the provisions in CEQ's NEPA regulations relating to public involvement be revised to be more inclusive and efficient, and if so, how? The current NEPA review process ensures ample public participation. By providing more clarity and focus to the NEPA process, including the scope of review and the required documentation, the agencies, permit applicants, and the public will be better able to better comprehend the NEPA documents which will fundamentally improve public involvement. 7. Should definitions of any key NEPA terms in CEQ s regulations, such as those listed below, be revised, and if so, how? a. Major Federal Action; b. Effects; c. Cumulative Impact; d. Significantly; e. Scope; and f. Other NEPA terms. b. Effects The term effects should be clarified to mean significant and long-term and/or permanent environmental effects. CEQ will help to reduce the complexity and burden of environmental reviews if only significant and long-term environmental effects become the focus of the NEPA review. This will appropriately narrow the discussion of alternatives to those that best address long-term and unavoidable environmental impacts. Further, the effects analysis necessarily should be circumscribed and limited to only those effects within the legal control of the agency or within the scope of the agency s authority that are proximately caused by the agency action. c. Cumulative Impact CEQ s NEPA regulations and the Supreme Court s decision in Public Citizen place important limits on the scope of an agency s evaluation of direct, indirect, and cumulative impacts to ensure that agencies properly focus on the proposed federal action, and do not unnecessarily expand their evaluation to impacts of other actions that are beyond their control. 2 2 Dep t of Transp. v. Public Citizen, 541 U.S. 752 (2004) 10

13 Page 11 An agency s cumulative effects analysis reviews the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. 3 But, in recent years, some agencies and courts have also considered effects that exceed these limits, including effects that are speculative and/or those effects that are well beyond the agencies control and authority. CEQ should confirm that an agency s evaluation of cumulative impacts is properly limited to those effects that are reasonably foreseeable, related to the action under consideration, and subject to the agency s regulatory jurisdiction and control. d. Significantly Significantly should refer to only long-term or permanent, adverse environmental impacts. Further, only agency actions resulting in significant adverse environmental impacts should require the preparation of an EIS. There are circumstances where only significant beneficial impacts on the environment have resulted from an agency action and yet an EIS has been triggered. CEQ must clarify that this is not necessary. Only major federal actions significantly and adversely affecting the quality of the human environment should require an EIS. e. Scope CEQ should confirm that an agency s scope of environmental review and analysis should focus on those effects that are caused by its action and are subject to its regulatory jurisdiction and control. Appropriate limits on scope promote informed agency decision-making by ensuring that decisions are based on analyses of only those environmental impacts over which the federal agency has control. Codifying the appropriate scope of NEPA review is critical to the efficient and timely review and authorization of permits that allow important energy infrastructure to be constructed, operated and maintained C.F.R

14 Page Should any new definitions of key NEPA terms, such as those noted below, be added, and if so, which terms? a. Alternatives; b. Purpose and Need; c. Reasonably Foreseeable; d. Trivial Violation; e. other NEPA terms. a. Alternatives Only project alternatives consistent with the objectives of a proposed action and within the action agency s authority should be considered. Thus, asking the agency to require use of alternative technology that will not accomplish the goals of the proposed action is inappropriate. The efficiency and relevancy of EAs and EISs would be greatly improved if CEQ were to limit the NEPA analyses to only those alternatives that are within the control of the lead agency to implement, that would allow the goals of the proposed action to be achieved, and that could reasonably address significant impacts of the federal action under consideration. b. Purpose and Need Appropriately constraining the terms purpose and need would further enhance the efficiency and relevancy of environmental reviews and allow the public to review and comment on NEPA documents in a more effective manner. Purpose should mean the underlying federal action or proposal triggering the lead agency s obligation to comply with NEPA. Need should mean the event or events triggering the federal agency s action or proposal. The lead agency s purpose and need statement should address the agency s specific regulatory authority. For example, where a federal agency is responding to an application for a land-use authorization, the agency s need likely is the federal agency s required processing of that application. Only those alternatives that can achieve the project s purpose should be discussed. Too often, an agency will modify the applicant s stated project purpose to expand the scope of the alternatives analysis. 12

15 Page 13 CEQ s regulations should be revised to provide presumptive validity to a non-federal applicant s project purpose. Private entities are in the best position to know and understand their business and their objectives. While it is appropriate for permitting agencies to work with applicants to address environmental impacts, allowing a permitting agency to redefine an applicant s purpose is not supported by NEPA and should be rejected by CEQ. c. Reasonably Foreseeable CEQ should define the term reasonably foreseeable in the NEPA regulations to properly limit the consideration of reasonably foreseeable effects to those the agency has the authority to prevent, which are not speculative, unrelated, or remote. Reasonably foreseeable should mean effects that are directly attributable to a proposed action and likely to occur soon, not speculative, remote, unlikely effects or effects stemming from other causes. Lack of legal or jurisdictional authority to control or prevent a future outcome may justify a determination that an action or event is not reasonably foreseeable. 9. Should the provisions in CEQ's NEPA regulations relating to any of the types of documents listed below be revised, and if so, how? a. Notice of Intent; b. Categorical Exclusions Documentation; c. Environmental Assessments; d. Finding of No Significant Impact; e. Environmental Impact Statements; f. Records of Decision; and g. Supplements a. Notice of Intent CEQ should direct action agencies to set time limits and explicit criteria for determining when a project proponent s application is deemed complete and for publishing the NOI. While there is CEQ guidance on this, EEI members experience is that there can be a significant time lag between the submission of an application and the action agency s publication of an NOI. The NOI starts the clock for completing the NEPA review and project proponents often experience delays in agency publication of the NOI. 13

16 Page 14 b. Categorical Exclusions Documentation Agencies are not fully utilizing CEs as a means to satisfy NEPA obligations without conducting an EA or EIS. CEQ should encourage agencies to identify and develop additional appropriate CEs to maximize efficiencies, where applicable. If an agency determines and documents that a CE applies, then no further analysis is required. Not only should new CEs be added, the language used in CEs should be standardized across all federal agencies for consistency. There should also be a clearinghouse of CEs so that a project can be developed with the CEs in mind. Currently, a list of available CEs is neither readily available nor shared among agencies. 10. Should the provisions in CEQ's NEPA regulations relating to the timing of agency action be revised, and if so, how? CEQ should require all agencies to act relatively promptly in conducting their NEPA reviews, and to coordinate with one another on a timely consolidated schedule once a lead agency has been selected. CEQ should build on the FAST-41 frameworks in identifying appropriate steps and setting deadlines in the NEPA review process. In addition, given that many agencies are experiencing a lack of resources, EEI member companies often utilize costrecovery mechanisms such as Master Agreements to ensure timeframes are agreed upon and met. 4 These agreements include additional agency staffing or contractor support, advanced funding, schedule expectations, and consistency at the regional and state level. We encourage CEQ to look at successful implementations of cost-recovery agreements for agency processing fees and provide direction and guidance to agencies on the value and use of these types of financial and contractual arrangements C.F.R

17 Page Should the provisions in CEQ's NEPA regulations relating to agency responsibility and the preparation of NEPA documents by contractors and project applicants be revised, and if so, how? Preparation of EAs and EISs could be improved if CEQ regulations specifically allowed the project applicant, or the applicant s contractor, to prepare draft NEPA documents. Currently, the regulations require that an EIS be prepared directly by or by a contractor selected by the lead agency. Particularly where the federal action under consideration is the issuance of a federal permit or other authorization to a non-federal entity, this requirement often creates unnecessary and significant delays. Often, the NEPA contractor selected by the federal agency is not allowed to coordinate with the non-federal applicant or review their documents before a permit application has been submitted to the lead agency. This approach is problematic for several reasons, including that the approach results in a significant lag in completing draft NEPA documents, an increase in the cost of preparation, and a greater likelihood that the preliminary draft document will contain inaccuracies because of the project applicant has not been party to all discussions. These costs and delays often are borne by the project proponent. Facilitating non-federal applicants participation in the development of NEPA documents is critical. Private entities applying for authorization from a federal agency should be involved in drafting both EAs and EISs, provided the federal agency exercises appropriate oversight, control and responsibility over the final document such that the analysis is that of the agency. The applicant is in the best position to provide information about the project and its potential effects. Allowing applicants to undertake drafting of NEPA documents can reduce burdens on the agencies, while ensuring that critical timelines are met. EEI recommends that CEQ revise its regulations relating to preparation of EISs. Revisions to these aspects of the regulations should 15

18 Page 16 facilitate the applicant s ability to directly prepare NEPA documents, with the proper role for independent evaluation by the agency. When an agency allows an applicant to prepare an EA, the applicant may contract directly with a third-party contractor for the preparation of an EA for submission to the agency. However, the agency must still make its own evaluation of the environmental issues and take responsibility for the scope and content of the EA. Supplemental direction from CEQ indicates that the execution of a third-party contract for the preparation of an EA is voluntary. In practice, agencies can have considerable latitude in mandating the implementation of a third-party contract for an EA. EEI recommends that the regulations also be revised to clarify when it is appropriate to enter into a third-party contract for an EA and whether such contracts are required. 12. Should the provisions in CEQ's NEPA regulations relating to programmatic NEPA documents and tiering be revised, and if so, how? CEQ should broadly support the use of programmatic EISs. Programmatic reviews should be considered where an agency is approving several similar actions or projects in a region (e.g., a large-scale utility infrastructure project) or a suite of ongoing, proposed or reasonably foreseeable actions that share a common geography or timing, such as multiple activities within a defined boundary (i.e., federal land or facility). Once programmatic reviews are completed, agencies should tier off of or incorporate relevant analyses by reference. As noted above, CEQ should encourage tiering and incorporation by reference, where appropriate. EEI members have experienced that there is a level of misunderstanding within the federal agencies and project consultants on how to tier, what tiering means, in what circumstances tiering is appropriate, and how tiering differs from incorporation by reference. EEI encourages CEQ to canvass federal agencies for examples of 16

19 Page 17 programmatic and tiered reviews that have worked well, and to examine those for elements that made them work well, to share with agencies and the public. 13. Should the provisions in CEQ's NEPA regulations relating to the appropriate range of alternatives in NEPA reviews and which alternatives may be eliminated from detailed analysis be revised, and if so, how? The efficiency and relevancy of EAs and EISs would be greatly improved if CEQ were to limit the documents analyses to only those alternatives that are within the control of the lead agency to implement, are within the project purpose, and can reasonably address significant impacts of the federal action under consideration. CEQ should clarify that, in some circumstances, the proposed action and the no action alternative are sufficient to satisfy the alternatives requirement. Where the lead agency complies with NEPA in response to an application for a discretionary permit, the no action alternative is permit denial, and the attendant impacts to the human environment that would occur as a result thereof. CEQ should clarify further their regulations and guidance to ensure that only necessary and technically feasible alternatives are analyzed, and that alternatives are not added unnecessarily to EISs and EAs. The alternatives analysis often requires substantial time and resources, and agencies may analyze alternatives that are not practicable. CEQ should clarify that alternatives can only be reasonable if they are within the jurisdiction of the action agency. Evaluating alternatives beyond the jurisdiction of the federal agency is not reasonable, and those alternatives should be excluded from the alternatives analysis. Further, there appears to be ambiguity in how many alternatives are required in an EA or EIS and what factors determine whether additional alternatives are needed. CEQ should address the range of alternatives required for an EA with the understanding that a simple EA should not have to include multiple alternatives. 17

20 Page 18 General 14. Are any provisions of the CEQ's NEPA regulations currently obsolete? If so, please provide specific recommendations on whether they should be modified, rescinded, or replaced. In many cases federal agency compliance with NEPA arises in connection with the agencies processing of an application for a permit under another environmental statute. In such circumstances, the underlying statutory framework such as the Endangered Species Act requires detailed analysis of the resources to be affected by permit issuance and requires public involvement. To the degree that other federal statutory frameworks require detailed analyses of environmental resources and a public review and comment process, and those resources are, in fact, analyzed under those frameworks and receive public input, EEI recommends that CEQ consider paring back the degree to which the same resources must be analyzed in accompanying NEPA documents. 15. Which provisions of the CEQ's NEPA regulations can be updated to reflect new technologies that can be used to make the process more efficient? CEQ should provide guidance on data standardization in terms of how it is collected and provided by project proponents. Using this standardized data, CEQ could develop a standard Geographic Information System schema for resources that can be shared among project proponents and across agencies. 16. Are there additional ways CEQ's NEPA regulations should be revised to promote coordination of environmental review and authorization decisions, such as combining NEPA analysis and other decision documents, and if so, how? CEQ should encourage action agencies to combine the documents on which they rely in reviewing and approving projects wherever possible to avoid the need for separate and duplicative reviews. If the purpose of a proposed action and potential environmental and other 18

21 Page 19 effects are identified early, and a small range of alternatives that would meet the purpose and address those effects can be identified equally soon after that, the fundamentals of the ROD and NEPA documentation should flow directly. Ideally, agency decisions under their enabling statutes and under the NEPA review process should combine as seamlessly as possible, without unnecessary delay or complexity. CEQ also should address potential conflicts between federal and state agency environmental review requirements. While the federal NEPA process is being streamlined through limited page numbers and reduced timeframes, some state agencies have determined that the information and analysis cannot be done under those constraints and have elected to develop separate, state mandated environmental review documents. Perhaps CEQ can issue guidance addressing the reconciliation of review documents, particularly mitigation measures so that conflicts between state and federal mitigation measures can be resolved before the issuance of draft state and federal documents. 17. Are there additional ways CEQ's NEPA regulations should be revised to improve the efficiency and effectiveness of the implementation of NEPA, and if so, how? 18. Are there ways in which the role of tribal governments in the NEPA process should be clarified in CEQ's NEPA regulations, and if so, how? 19. Are there additional ways CEQ's NEPA regulations should be revised to ensure that agencies apply NEPA in a manner that reduces unnecessary burdens and delays as much as possible, and if so, how? CEQ should adopt elements from the FAST-41 and OFD frameworks to ensure that, when an applicant seeks coordinated federal authorizations for a project, the environmental review process is as streamlined as possible. CEQ also should refer to the Federal Permitting Improvement Steering Council s annual Recommended Best Practices for Environmental 19

22 Page 20 Reviews and Authorizations for Infrastructure Projects and incorporate them into regulations and guidance where applicable. 20. Are there additional ways CEQ's NEPA regulations related to mitigation should be revised, and if so, how? Neither NEPA nor CEQ s implementing regulations impose a duty on federal agencies to adopt mitigation measures for an EA with a FONSI or ROD. CEQ s regulations already allow agencies to incorporate appropriate mitigation measures in EAs to avoid an action rising to the level of a significant impact to the environment. By adopting such measures in a mitigated FONSI, agencies can streamline decision-making while ensuring that environmental impacts are minimized. Thus, the decision whether to address, and ultimately include, mitigation measures in an EA/FONSI are left to the discretion of the agency conducting the NEPA analysis. EEI supports this current approach, which is in keeping with NEPA s mandate. To the extent CEQ addresses mitigation measures, it should specifically affirm that a federal agency may adopt binding mitigation measures only if, and to the extent that, such measures are authorized by the agency s organic statute. In closing, EEI encourages CEQ to undertake a rulemaking to modify its regulations to revise, modernize, and streamline the NEPA review process. These critical revisions will focus limited agency resources on the most pertinent environmental issues, reduce duplication where appropriate, and provide more certainty to the public, which relies on EEI members activities to provide safe, reliable, affordable and increasingly clean energy to customers. 20