The Trump administration filed a rule change this past weekend to remove key implementation regulations for the National Environmental Policy Act, a critical environmental law that dates back to 1969. While this new rule, once finalized, wouldn’t eliminate NEPA itself (doing so would take an act of Congress), it would eliminate the authority of the office charged with overseeing how federal agencies interpret and implement the law. This throws the entire federal environmental review process into limbo as developers await what will likely be a long and torturous legal battle over the law’s future.
The office in question, the Council on Environmental Quality, is part of the Executive Office of the President and has directed NEPA administration for nearly the law’s entire existence. Individual agencies have their own specific NEPA regulations, which will remain in effect even as CEQ’s blanket procedural requirements go away. “The argument here is that CEQ is redundant and that each agency can implement NEPA by following the existing law,” Emily Domenech, a senior vice president at the climate-focused government affairs and advisory firm Boundary Stone, told me. Domenech formerly served as a senior policy advisor to current and former Republican Speakers of the House Mike Johnson and Kevin McCarthy.
NEPA has been the subject of growing bipartisan ire in recent years, as lengthy environmental review processes and a barrage of lawsuits from environmental and community groups have delayed infrastructure projects of all types. While the text of the pending rule is not yet public, the idea is to streamline permitting and make it easier for developers to build. In theory that would include expediting projects such as solar farms and clean energy manufacturing facilities; in reality, under the Trump administration, the benefits could redound to fossil fuel infrastructure first and foremost.
On his first day back in office, Trump issued an executive order entitled Unleashing American Energy, which instructed CEQ to provide new, nonbinding guidance on NEPA implementation and “propose rescinding” its existing regulations within 30 days. Time is up, and CEQ published its first round of guidance late Wednesday night. So far it’s pretty bare bones, though as Hochman pointed out, it notably does away with environmental justice considerations as well as the need to take the “cumulative” environmental effect of an action into account, as opposed to simply the “reasonably foreseeable effects.” It also looks to exempt certain projects that receive federal loans from the NEPA process.
But gutting CEQ’s regulatory capacity via this so-called “interim final rule” is a controversial move of questionable legality. Interim final rules generally go into effect immediately, thus skirting the requirement to gather public comment beforehand. Expediting rules like this is only allowed in cases where posting advance notice and taking comments is deemed “impracticable, unnecessary, or contrary to the public interest.”
It’s almost certain that this interim rule will be challenged in court. Sierra Club senior attorney Nathaniel Shoaff certainly thinks it should be. “This action is rash, unlawful, and unwise. Rather than making it easier to responsibly build new infrastructure, throwing out implementing regulations for NEPA will only serve to create chaos and uncertainty,” Shoaff said in a statement. “The Trump administration seems to think that the rules don’t apply to them, but we’re confident the courts will say otherwise.”
Thomas Hochman, director of infrastructure at the center-right think tank Foundation for American Innovation, disagrees. “I think environmental groups will sue, and I think they’ll lose,” he told me. Hochman cited a surprising decision issued by the D.C. Circuit Court of Appeals last November, which stated that CEQ did not have the authority to issue binding NEPA regulations, and that it was never intended to "act as a regulatory agency rather than as an advisory agency.” This ruling ultimately made it possible for Trump to so radically reimagine CEQ’s authority in his executive order.
“I would expect environmentalists on the left to challenge any Trump administration actions on NEPA,” Domenech told me. “But I actually think that the Trump team welcomes that, because they'd love to get quicker, decisive rulings on whether or not CEQ even had this authority to begin with.”
NEPA, which went into effect before the Environmental Protection Agency was even created, is a short law with the simple goal of requiring federal agencies to take the environmental impact of their work into account. But responsibility for the law’s implementation has always fallen to CEQ, which created a meticulous environmental review and public input process — perhaps too meticulous for an era that demands significant, rapid infrastructure investment to enable the energy transition.
Recognizing this, the Biden administration tried to rein in NEPA and expedite environmental review via provisions in the 2023 Fiscal Responsibility Act, which included imposing time limits on Environmental Assessments and Environmental Impact Statements and setting page limits for these documents. But as Hochman sees it, these well intentioned reforms didn’t make much of a dent. “It was up to CEQ to take the language from the Fiscal Responsibility Act and then write their interpretation of it,” he told me. “And what CEQ basically did was they grafted it back into the status quo.” Now that those regulations are kaput, however, Hochman thinks the Fiscal Responsibility Act’s amendments will have much more power to narrow NEPA’s mandate.
Trump’s executive order requires the yet-to-be-announced chair of CEQ to coordinate a revision of each individual agency’s NEPA regulations, a process that the recent CEQ guidelines allow 12 months for. But developers can’t afford to sit around. So in the meantime, CEQ recommends (but can’t enforce) that agencies “continue to follow their existing practices and procedures for implementing NEPA” and emphasizes that “agencies should not delay pending or ongoing NEPA analyses while undertaking these revisions.” That said, chaos and confusion are always an option. As Hochman explained, many current agency regulations reference the soon-to-be defunct CEQ regulations, which could create legal complications.
Hochman told me he still thinks CEQ has an important role to play in a scaled-down NEPA landscape. “CEQ ideally will define pretty clearly the framework that agencies should abide by as they write their new regulations,” he explained. For example, he told me that CEQ should be responsible for interpreting critical terms such as what constitutes a “major federal action” that would trigger NEPA, or what counts as an action that “normally does not significantly affect the quality of the human environment,” which would exempt a project from substantial environmental review.
No doubt many of these interpretations will wind up in court. “You will probably see up front litigation of these original definitions, but once they’ve been decided on by higher courts, they won’t really be an open question anymore,” Hochman told me. Basically, some initial pain for lots of future gain is what he’s betting on. Once the text of the interim rule is posted and the lawsuits start rolling in, we’ll check in on the status of that wager.
Editor’s note: This story has been updated to reflect the publication of CEQ’s new guidance on NEPA implementation.
Chart courtesy of the Business Council on Sustainable Energy
