The past few months have been a period of high uncertainty over implementation of the National Environmental Policy Act (NEPA). In December, the Supreme Court heard arguments in a case that addressed the scope of foreseeable effects to be analyzed under NEPA. Days earlier, the U.S. Court of Appeals for the District of Columbia Circuit had invalidated CEQ regulations issued by the Council on Environmental Quality (CEQ) within the Executive Office of the President. With some revisions, the regulations had governed NEPA reviews for more than forty years. The CEQ regulations and appeals court ruling created confusion over which standards should apply to NEPA reviews, particularly for controversial projects likely to come under judicial scrutiny.
Though a decision from the Supreme Court could arrive at any time, new actions by the Trump administration brought some clarity. On January 20, Executive Order 14154 revoked numerous prior orders, including President Carter’s 1977 Order (EO 11991), which had instructed the CEQ to prepare government-wide NEPA regulations. Coupled with the denial of rehearing by the D.C. Circuit and a ruling from the U.S. District Court in North Dakota which invalidated the CEQ regulations and vacated CEQ’s 2024 rules, the status of the regulations has been in doubt.
On February 19, the CEQ issued guidance to all federal agencies on NEPA implementation, and made public a rulemaking notice that rescinded the regulations on an interim basis, pending further public comment. Together, these documents reflect the administration’s intent to streamline NEPA and rely on the amendments to NEPA contained in the Fiscal Responsibility Act of 2023. For the short term, prior cases plus these amendments will constitute an effective common law of NEPA. More significant changes must await individual agency action.
The Guidance directs all federal agencies to update their NEPA procedures within 12 months “to expedite permitting approvals and for consistency with NEPA, as amended by the [Fiscal Responsibility Act of 2023 (FRA)], including the deadlines established in NEPA.” While those changes are pending, agencies are encouraged to voluntarily rely on the 2020 CEQ Regulations for project development and defense of projects in court. The Guidance further discusses the NEPA amendments in the FRA, which codified many of the regulations and interpretive caselaw. The Guidance directs agencies not to include environmental justice considerations in NEPA documents “to the extent that this approach is consistent with other applicable law.”
The rulemaking notice, which likely will be published in the Federal Register in the coming days, states that President Nixon initially instructed the CEQ to publish “guidelines” for preparation of NEPA documents before President Carter instructed regulations to be issued. The CEQ also states it has “come to have serious concerns about its statutory authority to maintain its NEPA implementing regulations, at least in the absence of E.O. 11991.” The CEQ finds no public reliance interests in the prior regulations because the regulations govern federal agencies, not the public, and agencies still have discretion to refer to regulations on a voluntary basis.
Once it has been published in the Federal Register, the rescission of the CEQ regulations will take effect within 45 days. The CEQ will accept comments for 30 days after publication.
