NEPA Regulations' Demise?

Thursday, January 23, 2025

On January 20, President Donald J. Trump signed an Executive Order entitled Unleashing American Energy. Section 5(a) of the new order revokes President Jimmy Carter’s 1977 Executive Order 11991, which directed and empowered the Council on Environmental Quality (CEQ) to adopt regulations implementing the National Environmental Policy Act (NEPA). The NEPA regulations, adopted in 1978, revised in 2020, and revised again in 2022 and 2024, have governed agency practice and guided judicial decisionmaking under 40 U.S.C. §4321 et seq. for the last 47 years. The U.S. Supreme Court in Andrus v. Sierra Club afforded the CEQ regulations “substantial deference” in defining agencies’ NEPA obligations. 

Section 5(b) of the new Executive Order directs the CEQ, by February 19, 2025, to adopt “guidance” to federal agencies on how to implement NEPA and by the same date to “propose rescinding” the NEPA regulations. It further directs the CEQ to convene a “working group” of federal agencies to coordinate the revision of agency-level NEPA implementing regulations for consistency with the new CEQ guidance. It directs agencies to meet existing statutory deadlines for environmental reviews and, “consistent with applicable law,” to hereafter “prioritize efficiency and certainty over any other objectives that do not align with” the Administration’s energy goals. 

The Executive Order appears to remove CEQ’s rulemaking authority (other than rescission of the CEQ regulations), and to supplant it with a rapidly drafted guidance document—at a time when the CEQ lacks a chair or even a nominee. This self-imposed limitation on the CEQ’s authority may prove to be consistent with last November’s surprise 2-1 decision of a panel of the D.C. Circuit in Marin Audubon v. Federal Aviation Administration, which announced (possibly in dicta) that the CEQ had never had authority to adopt any rules (See ELI’s Vibrant Environment post from November 19, 2024). While the panel decision is currently the subject of a pending petition for en banc reconsideration, it is worth noting that even if the Administration withdraws the government petition, the plaintiffs will pursue theirs, and the issue, at least in their case, is not mooted by the new Executive Order. 

Assuming the CEQ proposes rescission of the NEPA regulations as directed by the President, the questions include: (1) Does the process require normal notice-and-comment rulemaking, or can the CEQ rely on the Marin panel decision or some other rationale (asserted “emergency”) to conduct a direct rescission? (2) Can the CEQ meet the judicially recognized standard under the Administrative Procedure Act for a regulatory repeal—e.g., a change in circumstances, information, or policy rationale? The Executive Order does not itself purport to rescind the existing regulations, so they remain in effect until a successful rescission is carried out. 

Any rescission will undoubtedly be challenged in court by multiple parties. And of course the litigation challenging the previous Biden revision to the NEPA regulations remains pending in the U.S. District Court for the District of North Dakota, presenting further complications for those seeking to understand their NEPA obligations. 

As for the planned CEQ guidance, there is likely to be no time for notice and comment or external review if the stated one-month deadline is to be met. This poses not only practical questions but also procedural anomalies. In his first term, President Trump’s Executive Order 13891 (Promoting the Rule of Law Through Improved Agency Guidance Documents) had imposed certain procedural requirements on significant guidance documents, including notice-and-comment requirements in most cases. And while President Biden’s Executive Order 13992 (Revocation of Certain Executive Orders Concerning Federal Regulation), revoked that order, this week President Trump in turn revoked the Biden Order. So will we have a public process? Any process? Lawyers will clearly want to know.