Department of Energy Issues Revised List of Categorical Exclusions Under the National Environmental Policy Act

On January 3, 2011, the Department of Energy (DOE) published a notice of proposed rulemaking to revise its list of categorical exclusions under the National Environmental Policy Act (NEPA). 76 Fed. Reg. 214. The deadline for filing comments is February 17, 2011. There will also be a public hearing in Washington, DC, on February 4, 2011. The FEDERAL REGISTER notice is available at:

The basic purpose of categorical exclusions is to expedite compliance with NEPA for federal actions that have little or no potential to cause significant environmental impacts. As we reported in General Memorandum 11-005 (Jan. 14, 2011), the President’s Council on Environmental Quality (CEQ) issued a guidance document in which CEQ calls on federal agencies to review their lists of categorical exclusions to consider if changes are in order. CEQ recommends agencies conduct such a review on a periodic basis, at least once every seven years. The DOE rulemaking notice appears to be in response to the CEQ guidance, although the notice also says that the DOE project to review its categorical exclusions has been underway for some time, including two FEDERAL REGISTER notices in December 2009. As explained in the notice, DOE researched the categorical exclusions lists used by some 50 federal agencies. As such, other agencies are likely to look to the DOE list when they review their own lists.

The DOE rulemaking notice is some 35 pages in the FEDERAL REGISTER, and we have not analyzed it thoroughly. The proposed rule, to be codified at 10 C.F.R. part 1021, is some ten pages; the remainder of the notice is devoted to explanatory materials and responses to comments. We note that there are a number of references to tribal governments throughout the notice. Our purpose in this memorandum is to bring this matter to your attention, in light of the upcoming deadline to file comments.

If you would like further information regarding the DOE proposed rulemaking on categorical exclusions, or assistance in filing comments, please contact us.