The Nickel Report

The Trump Administration is initiating major changes to reduce NEPA burdens, including an interim final rule to repeal the longstanding White House Council for Environmental Quality (CEQ) NEPA regulations and CEQ guidance directing federal agencies to update their agency-specific NEPA regulations and procedures to prioritize efficiency and certainty. These actions implement directives from the President’s Executive Order (EO) 14154, Unleashing American Energy, to expedite and simplify the federal permitting process to unleash energy dominance through efficient federal permitting.  These changes may lead to more focused reviews and help accelerate federal permitting, although there is likely to be uncertainty in the implementation of NEPA in the near term as agencies work to update their regulations and procedures.

Background

NEPA established CEQ and authorized CEQ to “make recommendations to the President” and “develop and recommend to the President national policies to foster and promote the improvement of environmental quality.” 42 U.S.C. § 4344(3)-(4).  NEPA provides no express authority to CEQ to issue binding NEPA regulations or requirements, or to take other regulatory action.  In 1977, President Carter issued EO 11991, directing CEQ to “issue regulations to the Federal agencies for the implementation of the procedural provisions” of NEPA.  Relying on the Carter EO, since 1978, CEQ has had in place regulations that set forth a framework for implementing NEPA. The CEQ NEPA regulations have been amended several times, including in 2020 by the first Trump Administration, and in 2023 and 2024 by the Biden Administration.  Many federal agencies have issued their own NEPA regulations and procedures, some of which supplement and build on CEQ’s regulations. 

Two recent federal court decisions have called into question CEQ’s authority to issue NEPA regulations.  In a recent D.C. Circuit decision, Marin Audubon v. FAA, a split panel held that CEQ’s NEPA regulations are ultra vires (beyond CEQ’s authority to issue).   In Iowa v. CEQ, the U.S. District Court for the District of North Dakota set aside CEQ’s NEPA Phase II regulations that were promulgated by the Biden Administration in 2024, relying on the same rationale as Marin Audubon Society.

President Trump’s Unleashing American Energy EO revoked the 1977 Carter EO, directed CEQ to propose rescinding CEQ’s NEPA regulations, and directed CEQ to provide guidance on implementing NEPA.

Interim Final Rule Removing CEQ NEPA Regulations

On February 25, 2025, CEQ published an interim final rule removing all CEQ NEPA regulations from the Code of Federal Regulations.  90 Fed. Reg. 10610 (Feb. 25, 2025).  The interim final rule implements President Trump’s directive to CEQ to remove its NEPA regulations from the CFR by April 11, 2025.  The interim final rule provides that the basis for the repeal is that CEQ’s regulations were issued at the direction of the 1977 Carter EO that President Trump has now revoked, President Trump has directed in the Unleashing American Energy EO that CEQ propose rescinding its NEPA regulations, and no other authority exists for maintaining CEQ’s NEPA regulations.  The interim final rule also cites to the recent decisions in Marin Audubon and Iowa v. CEQ.

The interim final rule invites public comment with a 30-day comment period ending on March 27, 2025, and takes effect on April 11, 2025.

CEQ Guidance to Federal Agencies on Implementing NEPA

On February 25, CEQ also issued guidance to federal agencies to assist with NEPA implementation.  The guidance emphasizes the need to “expedite permitting approvals and meet deadlines,” and “prioritize efficiency and certainty over any other policy objectives that could add delays and ambiguity to the permitting process.”  Federal agencies must revise their NEPA implementing procedures (or establish such procedures if they do not yet have any) to expedite permitting approvals and for consistency with NEPA.  While these revisions are ongoing, agencies should continue to follow their existing practices and procedures for implementing NEPA consistent with the text of NEPA, EO 14154, and the new CEQ guidance.

The guidance makes clear that agencies should not delay pending or ongoing NEPA analyses while undertaking regulatory revisions, and should apply their current NEPA implementing procedures with any adjustments needed to be consistent with NEPA, as amended by the Fiscal Responsibility Act in 2023.  It also recommends that agencies consider “voluntarily relying on” CEQ’s regulations, particularly the 2020 CEQ regulations, even though CEQ’s regulations are being repealed.    

For purposes of revising their NEPA regulations and procedures, the guidance directs that federal agencies should:

• Develop transparent, clear and predictable procedures for review of project sponsor-prepared EAs and EISs and prioritize project sponsor prepared documents for expeditious review;
• Consider only a reasonable range of alternatives that are technically and economically feasible and that meet the purpose and need of the proposed action;
• Analyze reasonably foreseeable effects of the proposed action, consistent with NEPA, which does not employ the term “cumulative effects;”
• Exclude analysis of environmental justice;
• Ensure consistency and predictability, by:
  • delineating the sequence of major decision points;
  • identifying actions and decisions not subject to NEPA at a threshold stage;
  • including specific criteria for and identification of the typical classes of action that qualify for categorical exclusions (CEs) or require EAs or EISs;
  • establishing how agencies will reevaluate and supplement EAs and EISs;
  • identifying lead, joint lead, cooperating and participating agencies;
  • establishing protocols for engaging with State, Tribal, and local governments;
  • establishing protocols for public involvement;
  • discussing when programmatic NEPA documents may be appropriate; and
  • including procedures for concluding the NEPA process.

While developing or revising the NEPA procedures, agencies must consult with CEQ, and all proposed and final procedures must be submitted to the Office of Management and Budget for a significance determination and possible interagency review.

The Road Ahead

There is likely to be uncertainty in the implementation of NEPA in the wake of these changes.  The interim final rule is likely to be challenged by states and eNGOs, although the recent federal district court decisions in Marin Audubon Soc’y v. FAA and Iowa v. CEQ may provide a sound basis for the interim final rule.  While federal agencies are in the process of updating their NEPA regulations and procedures, agencies are likely to continue implementing their existing NEPA procedures provided they are consistent with the NEPA statutory language.