environmental-impact-statement

# Environmental Impact Statement (EIS)

Drafts a NEPA-compliant EIS analyzing environmental consequences of a proposed federal action across all required resource categories and alternatives.

## Authority status (read first)

NEPA practice in 2026 is materially different from pre-2023 practice. Anchor the analysis on:

1. **NEPA itself** — 42 U.S.C. § 4321 et seq., as amended by the **Fiscal Responsibility Act of 2023** (Pub. L. 118-5, June 3, 2023). New / amended provisions of central importance:
   - § 4332(2)(C) — content requirements for the detailed statement.
   - **§ 4336** — threshold and EA framework.
   - **§ 4336a** — page limits, deadlines, lead/cooperating agencies, sponsor preparation.
   - **§ 4336b** — programmatic environmental documents.
   - **§ 4336c** — categorical exclusions adopted by other agencies.
2. **CEQ regulations are no longer binding.** CEQ rescinded its NEPA implementing regulations (formerly 40 C.F.R. Parts 1500–1508) by Interim Final Rule on Feb 25, 2025, effective **April 11, 2025**; codified by Final Rule Jan 8, 2026. Federal agencies now rely on their own NEPA implementing procedures.
3. **Lead-agency procedures control** — the practitioner must identify and apply the lead agency's NEPA procedures. Common examples:
   - USDA — 7 CFR Part 1b (revised 2025 IFR).
   - DOE — 10 CFR Part 1021.
   - DOI — 43 CFR Part 46.
   - FHWA — 23 CFR Part 771.
   - FAA — FAA Order 1050.1F.
   - USACE — 33 CFR Part 230.
   - EPA (when EPA leads NEPA analysis) — agency-specific procedures published in 2025.
4. **Statutory page and time limits** (per § 4336a):
   - **EIS: 150 pages maximum** (300 pages for proposed actions of "extraordinary complexity"); **2-year deadline** from determination that an EIS is required.
   - **EA: 75 pages maximum**; **1-year deadline**.
   - Page limits exclude citations and appendices.
5. **Marin Audubon v. FAA** (D.C. Cir. Nov 2024) held that CEQ lacks statutory authority to issue binding NEPA regulations. The Trump administration's Executive Order 14154 (Jan 2025) directed rescission. Subsequent litigation may reshape this; verify current state.

For verification dates and complete authority record, see `references/AUTHORITY-STATUS.md`. For document structure detail, see `references/EIS-STRUCTURE.md`.

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## Related skills

- `eir-summary` — for legally-focused summaries of completed EIS / EIR documents (CEQA + NEPA).
- `phase-i-esa` — for site-level Phase I ESA work that may feed into an EIS affected-environment analysis.
- `environmental-regulation-summaries` — for cross-statute compliance overview.
- `consent-decree-epa` — when the federal action is a remedial settlement.
- `nov-response` — when NEPA non-compliance is alleged in a NOV.

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## Prerequisites

Gather before drafting:

1. **Project identification** — title, lead agency, cooperating agencies, NEPA coordinator.
2. **Lead-agency NEPA implementing procedures** — current version. **Critical** — this controls the analysis where CEQ rules once did.
3. **Proposed action** — location, timing, phases, scale, legal authority, required permits.
4. **Purpose and need** — underlying problem, regulatory/policy mandates driving action.
5. **Alternatives** — all considered alternatives, including those screened out with reasons.
6. **Baseline data** — environmental inventories (physical, biological, cultural, socioeconomic).
7. **Consultation records** — scoping comments, agency/tribal letters, Section 106 / Section 7 documentation.
8. **Page-budget plan** — at 150 pages (or 300 for extraordinary complexity), planning the page allocation across resource categories and alternatives is part of the prep work, not an afterthought.

## Quick Start

1. Confirm project scope, lead agency, and the decision to be made.
2. Pull the lead agency's current NEPA implementing procedures.
3. Confirm § 4336a page and time limits applicability; allocate pages by resource category.
4. Draft purpose and need — specific enough to bound alternatives without predetermining outcome.
5. Develop alternatives array including no-action (forward-looking).
6. Catalog affected environment by resource category.
7. Analyze consequences (direct, indirect, cumulative) per resource × alternative.
8. Specify enforceable mitigation measures with monitoring.
9. Document all consultation and public involvement.
10. Compile list of preparers with expertise and sections.

Detailed document structure is in `references/EIS-STRUCTURE.md`.

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## Pitfalls and Checks

- **Hard look standard** — analysis must reflect rigorous consideration; avoid conclusory statements unsupported by evidence. Hard-look review survived the FRA 2023 amendments and the 2025 CEQ rescission and remains the controlling APA-review standard.
- **Page budget discipline** — the § 4336a 150-page (or 300-page) cap is binding statutory law. Court-ordered remand is a real risk where an EIS exceeds limits without the "extraordinary complexity" finding being supportable.
- **Lead-agency procedures, not CEQ rules** — the practitioner must cite the lead agency's procedures. Citing 40 C.F.R. Parts 1500–1508 as binding regulatory authority in a 2026 EIS is a material error.
- **Alternatives rigging** — courts scrutinize whether alternatives represent a genuine range vs. predetermined outcome.
- **No-action baseline** — must project future conditions, not merely describe current state.
- **Significance / intensity** — the substantive significance analysis (formerly anchored at 40 CFR § 1508.27) remains practically required by the statute and by lead-agency procedures, even though the specific CEQ-regulation cite is no longer binding. Most agency procedures have analogues.
- **Environmental Justice analysis** — required under E.O. 12898 historically; status of EJ-specific requirements has shifted with executive-order changes since 2025. Check the lead agency's current procedures and any operative E.O.
- **Plain language** — accessible to non-technical public; define terms; use active voice. (Codified at § 4336a / agency procedures.)
- **Source documentation** — cite all scientific literature, regulatory standards, and monitoring data; unsupported assertions are litigation targets under hard-look review.
- **Tables and figures** — use for spatial, quantitative, or comparative information to improve clarity; appendices are excluded from the page count under § 4336a.

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## Troubleshooting

- **Lead-agency procedures still cite 40 C.F.R. Parts 1500–1508.** Most agency procedures pre-date the 2025 rescission. Until the agency revises its procedures, the agency's procedures *as written* still control internal practice — but the *binding* nature of CEQ regulations has changed. State the agency procedures as the lead authority; note the 2025 rescission of CEQ rules in a footnote or methodology section.
- **Project initiated before April 11, 2025; EIS in progress at rescission date.** CEQ's rescission did not retroactively invalidate EISs prepared under former 40 CFR Parts 1500–1508. Continue per the framework in place at NOI; document the transition in the methodology section.
- **Page limit infeasible.** If the analysis cannot be performed within 150 pages, document the "extraordinary complexity" determination explicitly (§ 4336a allows up to 300 pages for such projects) and apply that determination only after agency-decisional concurrence. Litigation risk increases without the determination.
- **Deadline infeasible.** § 4336a permits extension in consultation with the project applicant by the time necessary to complete the analysis. Document the extension and reasons; budget extensions cannot be open-ended.
- **Multiple lead agencies disagree on scope.** Per § 4336a, designate a single lead agency; cooperating agencies coordinate. The disagreement is itself a lead-agency designation issue; resolve before EIS scoping, not during analysis.
- **Cumulative impacts framework varies by lead-agency procedure.** Cumulative-impacts analysis is required by the statute; the methodology in former 40 C.F.R. § 1508.7 was widely adopted but is no longer binding. Most lead-agency procedures retain a cumulative-impacts requirement; apply theirs.
- **Tribal consultation requirements exceed lead-agency NEPA procedures.** E.O. 13175 and statute-specific requirements (NHPA § 106, NAGPRA, etc.) operate alongside NEPA. Coordinate the consultation rather than treating it as derivative of NEPA.

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## References

- `references/AUTHORITY-STATUS.md` — date-stamped record of authoritative sources consulted for this skill.
- `references/EIS-STRUCTURE.md` — full document-structure spec by section, including resource categories and analytical approach.