The Trump Administration has begun operationalizing its regulatory strategy for projects requiring evaluation under the National Environmental Policy Act (NEPA). In this alert, we discuss two key actions being taken and key takeaways for companies.
CEQ memorandum
The White House Council on Environmental Quality (CEQ) issued a memorandum providing interim guidance on the implementation of NEPA on February 19, 2025. The guidance aligns with the Trump Administration’s efforts to expedite environmental review for federal actions, and adopts the positions set out in Marin Audubon v. Federal Aviation Administration and State of Iowa v. Council on Environmental Quality, where the Washington, DC, and Ninth Circuit Courts of Appeals asserted that CEQ does not have statutory authority to issue NEPA regulations that apply to all federal agencies.
Specifically, the guidance notifies all federal departments and agencies of CEQ’s intent to repeal its NEPA regulations, and directs agencies to revise their individual NEPA implementing procedures consistent with Executive Order (EO) 14154, “Unleashing American Energy,” within 12 months.
The memorandum instructs all federal agencies to consider the following as they begin plan revisions:
- Remove all environmental justice considerations
- Remove the requirement for “effects” analysis to specifically consider “cumulative” effects
- Carefully consider the definition of “major federal action” in excluding federal actions with no or minimal federal funding and loans, guarantees, and other financial assistance where there is little or no federal control over the project or program (“major federal actions” trigger the requirement to comply with NEPA)
- Keep confidential certain information in classified proposals (no public availability requirement), and
- Create a single, coordinated environmental document for actions involving more than one agency approval.
In what may be an effort to quell concerns about increased delays as the Trump Administration revises the permitting process, the CEQ guidance emphasizes the Administration’s commitment to “consistency and predictability” Accordingly, CEQ’s memorandum encourages all agencies to, among other things, develop a timeline with clear-cut deadlines for critical milestones in the permitting process (eg, environmental impact assessments). In addition, in an attempt to promote clarity for applicants and agencies regarding the level of review that particular federal actions will require under NEPA, the guidance directs agencies to develop specific criteria for and the identification of typical classes of actions that fit into the following general NEPA scenarios. These may include:
- Actions that do not significantly affect the quality of the human environment
- Actions that require environmental assessments, but not necessarily environmental impact statements, or
- Actions that require environmental impact statements.
Moreover, agencies are advised to develop processes that may be used to conclude or terminate the NEPA process.
While the guidance aims to streamline and remove uncertainty from the NEPA process, it also highlights the challenges ahead for agencies that have relied on CEQ’s NEPA regulations without developing their own robust procedures. The guidance states that although “CEQ is rescinding its NEPA implementing regulations [on April 11],” federal agencies should “consider voluntarily relying on those regulations in completing ongoing NEPA reviews or defending against challenges to reviews completed while those regulations were in effect.” This clarifies that CEQ’s regulations will not be available for new NEPA reviews following the scheduled rescission. CEQ will host monthly meetings of the Federal Agency NEPA contract and NEPA implementation groups to provide ongoing guidance and assistance.
Interim final rule
On February 25, 2025, CEQ published an interim final rule, “Removal of National Environmental Policy Act Implementing Regulations.” The interim final rule is aligned with the CEQ guidance that was issued six days prior, previewing the decision that CEQ would rescind the current NEPA regulations. CEQ is requesting public comments until March 27, 2025. Notably, this rule will not be effective at the end of the comment period, and CEQ provided a 45-day delay of the rule’s effective date; thus, the rule’s effective date is April 11, 2025.
While the interim final rule removes CEQ regulations implementing NEPA, it emphasizes that the rulemaking does not consider the 2020 NEPA rule established under the first Trump Administration, which aimed to expedite the NEPA process. Additionally, it does address the Phase 1 and Phase 2 NEPA rules implemented under former President Joe Biden, which expanded the scope of NEPA reviews to include a broader range of impacts, environmental justice, and cumulative risk concerns. CEQ is not soliciting comment on the specific content of those prior rulemakings or their amendments.
To provide support for the changes proposed in the final rule, the Trump Administration explained that EO 14154 rescinds President Jimmy Carter’s EO 11991, which directed CEQ to implement NEPA regulations. Upon rescission of President Carter’s EO, the CEQ asserted that it “has identified no other authority to maintain its NEPA Implementing Regulations.” In addition, CEQ has defended its decision not to issue a proposed rule for notice and comment by citing the exception to the Administrative Procedure Act for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”
Looking ahead
Implementation of the NEPA statute has been one of the most active areas of litigation, with several legal challenges in recent years. These new regulatory developments will likely add to that long history.
While the regulated community awaits revised implementation guidance from federal agencies, CEQ, and the Trump Administration, private entities developing current projects may consider engaging with representatives of the lead agency to gain clarity on which procedural and legal requirements may be used to analyze the project during the next year. This is expected to be an agency-specific assessment that would vary from agency to agency, and project to project.
DLA Piper’s Environmental practice group will continue to actively monitor environmental law and policy changes related to NEPA as the group assists companies with navigating the rapidly evolving landscape.
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