CEQ has now Approved the Use of Mitigation to Reduce Environmental Impacts to a Level That Eliminates the Need for an EIS
John C. Lemaster, ShareholderRyley Carlock & Applewhite email@example.com
In a significant development for those who work on projects that require review under the National Environmental Policy Act (NEPA), the Council on Environmental Quality (CEQ)  recently issued final guidance reversing its past position that an Environmental Impact Statement (EIS) remains necessary even if mitigation measures are developed during the NEPA process that will reduce the reasonably foreseeable environmental impacts of a major federal action to a level that is not significant.
CEQ's new guidance is that "use of mitigation may allow the agency to comply with NEPA's procedural requirements by issuing an EA and a Finding of No Significant Impact (FONSI), or ‘mitigated FONSI,' based on the agency's commitment to ensure the mitigation that supports the FONSI is performed, thereby avoiding the need to prepare an EIS."
Mitigation can take several different forms, including the following as enumerated in the Final Guidance:
In reversing its prior position, CEQ outlined a number of issues to be considered in connection with a federal agency's issuance of a mitigated FONSI:
Responsibility and Consultation
 42 U.S.C. § 4331 et seq.
 CEQ was established within the Executive Office for the purpose of overseeing federal agencies' discharge of their duties under NEPA, see, e.g., 42 U.S.C.A. § 4344(3), and issues federal regulations concerning NEPA compliance.
 Memorandum for Heads of Federal Departments and Agencies re: "Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact," dated January 14, 2011 ("Final Guidance"). Available at:
http://www.whitehouse.gov/sites/default/files/microsites/ceq/01 14 11 Mitigation and Monitoring Guidance.pdf
 NEPA's requirement that federal agencies must consider environmental consequences only applies in the case of "major Federal actions" that "significantly" impact the human environment. 42 U.S.C. § 4332(2)(C). CEQ's implementing regulations outline what constitutes a "Major Federal action," 40 C.F.R. § 1508.18, and what impacts are "significant." 40 C.F.R. § 1508.27.
 Final Guidance at pp. 4-5 (citing 40 CFR § 1508.20).
 Id. at p. 2.
 Id. at p. 3 n. 8 (citing its prior guidance, "Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations," 46 Fed. Reg. 18,026 (Mar. 23, 1981), available at ceq.eh.doe.gov/nepalregs/40/40Pl.htm.)
 Id. at p. 10.
 Id. (enumerating some factors agencies should use in determining the level of "importance").
 Id. at pp. 10-11.
 Id. at p. 7 and n. 18.
 Id. at p. 7.
 Id. at pp. 9 and 14-15.
 Id. at pp. 7-8.
 Id. at pp. 9-10.
 Id. at p. 12.
 Id. at p. 5.
 Id. at p. 13. However, CEQ recognizes that some information must be treated as confidential, such as "confidential business information or the location of sacred sites." Id. at 14.