National Environmental Policy Act (NEPA) policy and practice has been in flux in recent months. Between executive orders, the recission of longstanding Council on Environmental Quality (CEQ) implementing regulations, a much-anticipated U.S. Supreme Court decision in Seven County Infrastructure Coalition v. Eagle County, and announcements by several federal agencies rescinding or modifying their own NEPA regulations, it’s worth a brief recap.
Sizzle to fizzle. Sending shockwaves at the time, the D.C. Circuit’s late 2024 decision in Marin Audubon v. FAA, a routine NEPA case that concluded CEQ lacked authority to issue regulations, as well as Iowa v. CEQ, a district court decision vacating CEQ’s 2024 Phase 2 NEPA regulations, have since receded into the background. These opinions could become relevant again if a subsequent administration seeks to reinstate binding CEQ regulations using an analogous approach, but for now they’ve been swamped by other developments.
End of an era. The immediate effect of these court decisions was limited by a January 20, 2025, executive order revoking the original Carter-era EO that served as the basis for CEQ’s authority to adopt regulations. CEQ then quickly rescinded all of its NEPA implementing regulations via interim final rule, issued interim guidance, and directed federal agencies to develop their own set of NEPA procedures within 12 months. Without the benefit of the government-wide framework CEQ had provided to agencies since 1978, and facing a patchwork agency-by-agency approach, NEPA entered uncharted territory.
“Alternative arrangements” at Interior. Contrary to prior practice, the Department of Interior announced in April that certain favored energy projects (including crude oil, natural gas, lease condensates, natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal energy, kinetic hydropower, and critical minerals) now qualified for an alternative compliance procedure to comply with NEPA. They were adopted using DOI’s NEPA regulations on emergencies. Stretching the bounds of the possible, the arrangement provided that environmental assessments would be conducted in 14 days, and environmental impact statements in 28 days subject to a 10-day comment period. CEQ blessed the approach and the Bureau of Land Management has already used it in at least two instances in Utah—once for a uranium and vanadium mine and again for the expansion of oil train facilities.
Whither deference? Even as the CEQ regulatory framework was being shaken up, the U.S. Supreme Court in late May injected additional uncertainty into NEPA practice in Seven County. Writing for the conservative majority, Justice Kavanaugh directed judges to give “substantial deference” to agencies’ determinations of the appropriate scope of their NEPA reviews. As observers have mentioned, the opinion provides scant clarity on the precise application of this directive. The majority’s newfound appreciation for agency expertise in factual matters takes place against a backdrop of the Court’s overall hostility toward administrative authority, and is a decided departure from its approach to legal interpretation in the 2024 Loper Bright decision. Parsing and applying these distinctions will be left to lower courts to work out case-by-case.
Go your own way. Following CEQ’s April release of a template for agencies to use when updating their NEPA procedures (see this helpful chart), some agencies announced changes right before the July 4th holiday. Thus far, at least five cabinet-level agencies that play outsized roles in major federal actions have made changes to their NEPA procedures.
This first wave demonstrates that agencies are willing to forgo APA notice-and-comment rulemaking procedures to make these changes. Instead, they are making them via interim final rules that take effect immediately. Some agencies are accepting comments, although whether these comments will have any effect remains uncertain. Brief summaries of the changes are below, along with links to the Federal Register announcements, remaining NEPA regulations, and any newly available NEPA procedures.
- Department of Agriculture. USDA has rescinded sub-agency level NEPA regulations and replaced them with one set of USDA-level regulations. The agency has voluntarily requested comments, which must be received by July 30. USDA’s consolidated regulations are codified at 7 CFR 1b.
- Department of Defense. Various sub-agencies at DOD issued individual recissions of their NEPA regulations (including the Air Force, Army, Corps of Engineers, and Navy). Unlike USDA, DOD did not elect to maintain a codification of its NEPA implementing regulations and instead issued procedures that effectively function as guidance. These can be found here, along with an appendix and an FAQ document. While the DOD procedures apply to the Corps of Engineers, the Corps’ Civil Works Regulatory Program still maintains its own set of NEPA regulations, now located at 33 CFR part 333. Practitioners will benefit from carefully reviewing the Corps-specific announcement, which also applies to Section 14 of the Rivers and Harbors Act. For all these DOD announcements, comments are being accepted no later than August 4 (with the exception of the Air Force, for which they are due July 31).
- Department of Energy. DOE announced plans to maintain a skeleton set of NEPA regulations at 10 CFR part 1021, containing a list of routine and administrative actions excepted from NEPA, existing categorical exclusions, and a set of emergency provisions. The remainder of DOE’s NEPA implementing procedures are contained in guidance. Comments are due by August 4. Forgoing public comment altogether, the Federal Energy Regulatory Commission (an independent agency within DOE), issued an announcement to revise its NEPA regulations to remove references to the now-defunct CEQ regulations. FERC’s NEPA regulations remain codified at 18 CFR parts 380 and 385.
- Department of Interior. DOI has taken a similar approach to DOE, announcing that it plans to retain a reduced set of NEPA regulations, including the set of provisions related to emergencies (at 43 CFR part 46). The agency placed the majority of its processes for implementing the law in a separate Handbook, along with an Appendix 1 (actions that normally require an environmental assessment or environmental impact statement), Appendix 2 (categorical exclusions), and Appendix 3 (implementation guidance for bureaus). Comments are due no later than August. 4.
- Department of Transportation. The Federal Highway Administration, Federal Railroad Administration, and the Federal Transit Administration jointly issued revisions to NEPA implementing regulations that apply to all three agencies. Regulations will continue to be codified at 23 CFR part 771. Comments on the proposed revisions are due by August 4.
This is the first tranche of these changes, and the Office of Information & Regulatory Affairs has already cleared proposals from several additional agencies.
The upshot is that practitioners will be faced with untangling this complicated web of new agency-specific NEPA procedures, whose application to multi-agency federal projects is unclear. And they will need to navigate federal courts’ responses on the future of NEPA “hard look” judicial review, as well as the larger conversation around agency independence and judicial deference.