FORTY MOST ASKED QUESTIONS & ANSWERS
Effective Date and Enforceability of the Regulations
12a. What actions are subject to the Council's new
regulations and what actions are grandfathered under the old
The effective date of the Council's regulations was
July 30, 1979 (except for certain HUD programs under the Housing
and Community Development Act, 42 U.S.C. 5304(h) and certain
state highway programs that qualify under Section 102(2)(D) of
NEPA for which the regulations became effective on November 30,
1979). All the provisions of the regulations are binding
as of that date, including those covering decisionmaking public
participation, referrals, limitations on actions, EIS
supplements, etc. For example, a Record of Decision would be
prepared even for decisions where the Draft EIS was filed before
July 30, 1979.
But in determining whether or not the new regulations
apply to the preparation of a particular environmental document,
the relevant factor is the date of filing of the draft of that
document. Thus, the new regulations do not require the redrafting
of an EIS or supplement if the Draft EIS or supplement was filed
before July 30, 1979. However, a supplement prepared
after the effective date of the regulations for an EIS
issued in final before the effective date of the
regulations would be controlled by the regulations.
Even though agencies are not required to apply the regulations
to an EIS or other document for which the draft was filed prior
to July 30, 1979, the regulations encourage agencies to follow
the regulations "to the fullest extent practicable," i.e., if it
is feasible to
do so in preparing the final document. Section 1506.12(a).
12b. Are projects authorized by Congress before
the effective date of the Council's regulations grandfathered"?
12c. Can a violation of the regulations give rise
to a cause of action?
The date of Congressional authorization for a
project is not determinative of whether the Council's
regulations or former guidelines apply to the particular
proposal. No incomplete projects or proposals of any
kind are grandfathered in whole or in part. Only certain
environmental documents, for which the draft was issued before
the effective date of the regulations, are grandfathered and
subject to the Councils' former Guidelines.
While a trivial violation of the regulations would
not give rise to an independent cause of action, such a
cause of action would arise from a substantial violation
of the regulations. Section 1500.3.