Ever since the U.S. Court of Appeals for the D.C. Circuit declared in Marin Audubon that the Council on Environmental Quality (CEQ) had no authority to issue binding National Environmental Policy Act (NEPA) regulations, questions have swirled about the future of NEPA implementation. Since Marin Audubon was decided on November 12, 2024, several significant actions have been taken. Here, we summarize some key NEPA-related developments over the past 90 days, including a potential interim final rule by CEQ rescinding its own NEPA regulations.
En Banc Review of Marin Audubon Denied
In Marin Audubon, parties challenged the failure of the Federal Aviation Administration and National Park Service to conduct NEPA reviews of plans to update approvals for tourist flights over several national parks in California. The agencies used an improper interpretation of the applicable environmental baseline. A split panel of the D.C. Circuit held that NEPA does not grant CEQ rulemaking authority, and the agency's promulgation of binding regulations violates the separation of powers established by the U.S. Constitution. The panel also ruled that the baseline used for the NEPA analysis was incorrect and set aside the underlying approvals.
Following the panel's decision, both sides requested en banc review. On January 31, 2025, the D.C. Circuit denied the request for en banc review. Seven judges signed a memo asserting that the November 2024 ruling about CEQ's rulemaking authority was unnecessary for the appeal’s outcome, should not be considered precedent, and did not prohibit federal agencies from electing to use CEQ regulations.
District Court Vacatur of NEPA Regulations
Four days after en banc review was denied, the U.S. District Court for the District of North Dakota issued an order in Iowa v. CEQ vacating the Biden Administration's "Phase 2" revisions to CEQ's NEPA regulations. The district court's reasoning mirrored the Marin Audubon opinion. The ruling reverted NEPA regulations to version adopted in 2020 under the Trump Administration (2020 Rules), as modified by the Biden Administration’s "Phase I" NEPA regulations finalized in 2022. The court also addressed other arguments against specific elements of the Phase 2 regulations in the event a higher court later reversed the district court’s decision.
Executive Orders and Other Actions Impacting NEPA
On January 20, 2025, President Trump issued Executive Order (EO) 14154: Unleashing American Energy, which, among other things:
- Revoked a 1977 Carter Administration EO directing CEQ to adopt binding NEPA regulations;
- Gave CEQ 30 days to propose rescinding its NEPA regulations; and
- Directed CEQ to issue guidance on NEPA implementation that focuses on efficiency and simplicity.
On January 21, 2025, President Trump issued EO 14173: Ending Illegal Discrimination and Restoring Merit-based Opportunity, which rescinded Clinton-era EO 12898 addressing environmental justice in minority and low-income populations.
CEQ Interim Final Rule
On February 19, 2025, an interim final rule by CEQ titled "Removal of National Environmental Policy Regulations" left the Office of Information and Regulatory Affairs (OIRA). The pre-publication version indicates it will take effect 45 days from publication, rescinding “all iterations” of CEQ's NEPA regulations. This rule was issued in compliance with EO 14154. Typically, once a rule leaves OIRA, it is published in the Federal Register fairly quickly.
CEQ Guidance on NEPA Implementation
On the same day the interim final rule left OIRA, CEQ issued a memorandum titled "Implementation of the National Environmental Policy Act" (Guidance). The Guidance is intended to provide a framework for use by federal agencies as those agencies develop or revise their own, agency-specific NEPA regulations. The Guidance also states it is focused on expediting and simplifying the NEPA process, in compliance with EO 14154.
For projects currently undergoing NEPA analysis or for defending projects that have completed the NEPA process, the Guidance states:
- Agencies should rely on existing NEPA implementing procedures; and
- Agencies should voluntarily rely on the regulations rescinded by the interim final rule
The Guidance then gives agencies 12 months to revise or develop agency-specific NEPA regulations and suggests, among other things:
- New procedures should use NEPA regulations issued in 2020, by the first Trump Administration, as a framework;
- New procedures should include processes for considering emergency actions;
- New procedures should establish protocols for engaging with state, Tribal, territorial, and local government agencies; and
- NEPA documents should exclude environmental justice analyses
What is Next for NEPA?
Expect significant litigation over rules and guidance issued by CEQ and federal agencies in response to President Trump’s Executive Orders and new CEQ Guidance. In the meantime, project proponents should consider:
- Statutory NEPA requirements, including updates from the Fiscal Responsibility Act;
- Agency-specific NEPA regulations and handbooks currently in place; and
- Frameworks from well-established NEPA caselaw (e.g., requirement that agencies give “hard look” at environmental consequences)
