It's official: the Council on Environmental Quality (CEQ) is formally rescinding its National Environmental Policy Act (NEPA) implementing regulations.
This month, CEQ published a notice that it will formally repeal its NEPA implementing regulations, reaffirming the agency's interim final rule from February 2025. That interim final rule came after the 2024 decision by the D.C. Court of Appeals in Marin Audubon Society v. FAA holding that CEQ lacked authority to promulgate binding NEPA regulations and a January 2025 executive order from President Trump directing CEQ to rescind those regulations.
Marin Audubon Society examined the history of CEQ's issuance of NEPA implementing regulations. Though NEPA established CEQ, the statute does not expressly grant CEQ the authority to promulgate binding regulations. Rather, CEQ began issuing NEPA implementing regulations after a 1977 executive order directed it to issue regulations to agencies for the implementation of NEPA. The same executive order also required agency compliance with CEQ regulations. But in Marin Audubon Society, the D.C. Court of Appeals held that this executive order was an insufficient legal basis for CEQ to issue binding NEPA regulations. Without statutory authority to bind agencies, the D.C. Circuit explained, the Constitution does not allow the president to issue an order conveying such authority.
Shortly after the D.C. Circuit's decision, President Trump issued an executive order revoking the 1977 executive order and directing CEQ to propose rescinding its NEPA implementing regulations.[1] CEQ's interim final rule did just that and further instructed agencies to update their own NEPA procedures within a year. Such updated procedures were to "describe how the agency will meet [NEPA's] requirements taking into account the agency's unique authorities and mission, with the goal of prioritizing efficiency and certainty over any other policy objectives."[2]
Many federal agencies acted rather quickly after the interim final rule was issued, publishing their own new or revised NEPA implementing procedures—though some of these were labeled as "nonbinding guidance," as opposed to rules or regulations. Agencies that have already issued new or revised NEPA procedures include the Departments of Commerce, Energy, Interior, Transportation, and Agriculture, as well as the Federal Energy Regulatory Commission, U.S. Army Corps of Engineers, and Department of Defense. Agencies' new NEPA procedures remove references to CEQ's old NEPA implementing regulations, emphasize congressional deadlines and page limits for environmental documents, streamline environmental review, expand exemptions and categorical exclusions, allow for applicant-prepared environmental impact statements, require agencies to identify and limit the scope of consideration of environmental effects, and contain fewer public participation requirements.
Generally speaking, these changes appear to help project proponents. Indeed, CEQ directed agencies to prioritize both efficiency and certainty in creating or revising their NEPA procedures. There is, however, the potential for inconsistencies within and across agencies without CEQ's uniform guidance. Without careful, up-front planning, those inconsistencies could cause regulatory uncertainty, decreased predictability, conflicting court decisions, and hesitancy by project proponents. This is especially true for projects that require approval from or coordination by multiple federal agencies. Uncertainty that leads to litigation may further delay projects and increase costs. And this uncertainty may be heightened by how many of the agencies have published their new NEPA procedures. Because many of the agencies' NEPA implementing procedures are now in the form of nonbinding guidance, as contrasted with rules or regulations, these procedures are more susceptible to changes in administration.
Another interesting aspect of CEQ's recent Federal Register notice is that it expressly states CEQ will not address the issue of whether the president has the authority to "delegate rulemaking authority to CEQ to govern agencies' implementation of NEPA." CEQ simply concludes that it must rescind its NEPA regulations because of the lack of statutory authority to issue binding regulations and "the absence of an executive order delegating rulemaking authority" after President Trump's rescission of E.O. 11991. Additionally, CEQ notes that rescinding its NEPA implementing regulations is unrelated to the Marin Audubon Society decision. CEQ's language may be an effort to restrict future administrations from returning to a CEQ-rules-based system.
Venable will continue to monitor CEQ and NEPA developments. If you have any questions, please contact the authors or anyone in Venable's Environmental Practice.