The National Environmental Policy Act has drawn congressional and presidential frustration for long over a decade and the regulations of the body it created—the Council on Environmental Quality—have often been caught in the litigious crossfire. While the problem can seem esoteric, the impacts of changes in interpretations of NEPA’s scope and the rights conferred can be significant.
At its core, NEPA is a procedural statute requiring the evaluation of the environmental impacts of “major federal actions significantly affecting the quality of the human environment” to inform the government’s decision making, not a mandate for action. However, many project developers decry NEPA’s burdensome and protracted review process where delays in agency approvals and judicial review can expose projects to significant risks and uncertainty that are potentially fatal to the project.
Recent Administration and Congressional actions continue efforts to rework the scope of NEPA’s procedural protections by constraining stakeholder rights, judicial review, and agency action. This alert provides context around these developments, which seek to fundamentally change NEPA processes for both project proponents and their challengers.
The REPAIR Act
On April 11, 2025, Senators Jim Risch (R-ID), Mike Crapo (R-ID), and Bill Cassidy (R-LA) reintroduced the Revising and Enhancing Project Authorizations Impacted by Review (REPAIR) Act after a substantially similar version of the bill failed to move past introduction in 2023. The bill takes direct aim at judicial review of NEPA actions and the process of project authorization challenges.
If the REPAIR Act is enacted, it would explicitly disclaim any right to challenge any NEPA authorization under the Administrative Procedure Act, a common tool for challenges of a project Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) or Environmental Impact Statement (EIS). Instead, challenges would need to be based upon provisions of underlying authorizing and permitting laws. These challenges would need to be made within 120 days of initial project authorization and could only be brought by individuals who “will suffer a direct and tangible harm because of the authorization . . . if the harm was not analyzed in the approval of the initial authorization.” This latter change possibly curtails association standing, which is often invoked by environmental nongovernmental organizations (eNGOs) seeking judicial review of major authorizations, potentially providing agencies with a powerful shield against litigation.
Once a challenge is brought to an action under NEPA, the REPAIR Act would also narrow the scope of relief available to plaintiffs through court action. The Act would prescribe a default remedy of remand, limiting the court’s ability to vacate, enjoin, or otherwise limit an authorization to situations where authorization would present an “imminent and substantial danger to human health or the environment for which there is no equitable remedy available under law.” Vacatur of an agency approval, particularly after developers have invested years of time and resources into a project, can be project-ending. Limiting the circumstances where vacatur applies would significantly reduce risk for project developers during the NEPA process.
Finally, the REPAIR Act would prescribe the process an agency must follow if a project authorization is enjoined, remanded, or vacated. The Act would require the agency and project sponsors to engage in mediation before the Federal Permitting Investment Steering Council, with expedited deadlines and stringent page limits for remediation proposals and re-authorization.
Streamlining of NEPA under the Trump Administration and the Courts
Even if the REPAIR Act languishes in Congress, the Trump Administration has made headway in constraining NEPA project reviews and streamlining project approvals. President Trump’s Day One Executive Order, Unleashing American Energy, revoked Jimmy Carter’s 1977 authorization to CEQ to promulgate implementing NEPA regulations and directed CEQ to issue new guidance to federal agencies on implementing NEPA. On February 25, 2025, CEQ published an interim final rule—effective April 11, 2025—rescinding all CEQ NEPA regulations. CEQ also published guidance exhorting agencies to “prioritize efficiency and certainty over any other policy objectives that could add delays and ambiguity to the permitting process” by, among other things, “revising” agency implementing regulations and relying heavily on project sponsor-created information. Further, at least one trade publication on April 15, 2025, reported that CEQ has recently directed federal agencies to rescind their NEPA regulations and replace agency-specific regulations with nonbinding guidance.
At the same time, the Administration has taken measures to prioritize and accelerate the approval process for large-scale projects. The Administration ordered the Secretary of Commerce to establish the United States Investment Accelerator, a new office within the Department of Commerce, by April 30, 2025. For qualifying projects of $1 billion or more, the order directs the office to reduce regulatory burdens, accelerate permitting approvals, coordinate review by federal agencies that have an oversight role, increase access to national resources, facilitate research collaborations, and work with state governments to mitigate any burdens at the state and local level. And, more recently on April 15, 2025, the Administration set a May 30 deadline for CEQ to issue a Permitting Technology Action Plan, modernizing permitting and environmental review for infrastructure projects. The Plan is meant to provide data and technology standards for permit applications and NEPA review, along with minimum functional standards for software to expedite low-level review, manage cases, collect data, and minimize timeline uncertainty.
The Trump Administration’s various deregulatory actions come on the heels of court decisions limiting CEQ’s power to impose requirements governing NEPA reviews. In November 2024, the U.S. Court of Appeals for the D.C. Circuit, in Marin Audubon Society v. FAA, ruled that CEQ has no statutory authority to promulgate binding regulations. The U.S. District Court for the District of North Dakota followed suit in February 2025 with Iowa v. CEQ, which vacated CEQ’s 2024 amendments to NEPA. More broadly, in Seven County Infrastructure Coalition v. Eagle County, Colorado, the Supreme Court is poised by this summer to answer whether agencies tasked with NEPA review responsibilities must study any environmental impacts beyond the proximate effects over which the agency has regulatory authority—a decision which may greatly alter the scope of NEPA-driven environmental review.
Challenges to Projects Remain Regardless of Steps Toward Deregulation
The reintroduction of the REPAIR Act signals continued support in Congress for NEPA streamlining. The bill also suggests that Congress and the current Administration are cognizant that suits challenging the adequacy of NEPA reviews can still stymie projects notwithstanding this increased emphasis on project development efforts by federal agencies. Whether there is enough support to permit passage of the REPAIR Act after a prior failure is not yet clear.
The upending of longstanding CEQ regulations may have more immediate impacts. In the absence of rules providing common definitions of NEPA terms and establishing a common set of principles to guide NEPA reviews, project developers and interested parties may face inconsistent application of NEPA across agencies, leading to even greater uncertainty in project oversight and spurring courts—post-Chevron—to fill the void.
At first glance, efforts to advance a deregulatory agenda limiting NEPA’s reach may seem to present opportunities, particularly for domestic energy projects. But in pursuing these opportunities, project developers seeking federal authorizations requiring NEPA review should be mindful of the litigation risks they will likely encounter from eNGOs and other opposing interest groups. These considerations apply even to the various industry sectors the Administration has sought to emphasize, including oil and gas, LNG, critical minerals, semiconductors, and data centers. Project sponsors subject to NEPA should consider being active partners in the process by helping agencies prepare robust and defensible draft EA or EIS documents while giving special attention to local, state, and federal permitting requirements. And if these reviews are subsequently challenged in court, project sponsors should intervene and actively defend their interests in any such lawsuits.
