Given the doubts raised by recent federal court decisions on the scope of the Council of Environmental Quality’s (CEQ's) authority and the issuance of that agency’s recent “interim final rule” on Removal of National Environmental Policy Act (NEPA) Implementing Regulations, it is unsurprising that NEPA’s fate feels uncertain. Indeed, some observers are painting a bleak picture for NEPA moving forward; one commentator, for example, is urging federal agencies to “aim to make the NEPA process as light-touch as possible” and “adjust” that approach only when (or if) the courts weigh in.
Yet it is important to remember that Act itself remains good law, codified in Title 42 of the U.S. Code and amended as recently as 2023 through the Fiscal Responsibility Act (FRA). Far from obsolete, this bedrock environmental statute, often described as the Magna Carta of U.S. federal environmental law, is alive and well, and—even without the CEQ’s regulations—continues to require federal agencies to evaluate the environmental impacts of their proposed actions and to study alternatives. As such, Jim McElfish and others have suggested that it would be wise for agencies and project proponents to continue relying on the last half-century of NEPA practice and judicial precedent, at least until a clearer picture emerges.
Notwithstanding CEQ’s statement that public comments “could not alter the President’s decision” to rescind the agency’s regulations, more than 88,000 comments have been submitted in response to the interim final rule. The sheer number of comments suggests that NEPA remains relevant, and that the recent developments have not sounded a death knell for NEPA practice—in fact, they have created more questions than answers.
To promote thoughtful consideration of these issues, ELI and the Tulane Center for Environmental Law will be co-hosting a free webinar, NEPA in 2025: Rumor, Reality, and the Way Forward, on April 9. With a panel of distinguished NEPA experts representing different sectors, the webinar is intended to help stakeholders work through the many questions swirling around NEPA in 2025, including but not limited to:
- What exactly happened? CEQ regulations have guided agencies through the NEPA process for five decades, but the last half-year has upended that arrangement. In two recent cases involving CEQ—one, Marin Audubon v. Federal Aviation Administration in the U.S. Court of Appeals for the D.C. Circuit, and another, Iowa v. CEQ, in the U.S. District Court for the District of North Dakota—the court considered sua sponte whether the CEQ even has authority to promulgate NEPA regulations, concluding that it does not. These cases sent shockwaves throughout the environmental field, leaving practitioners confused about whether the regulations remained in force. Then, on the first day of his second term, President Trump signed Executive Order No.14544, effectively rescinding all CEQ regulations effective April 11, 2025.
- What NEPA procedures will agencies follow after April 11? Along with the interim final rule rescinding the NEPA regulations, CEQ issued a guidance memorandum that offers only limited clarity on what comes next for agencies implementing their statutory duties under NEPA. In addition to utilizing their agency-specific procedures in a manner “consistent with” the text of NEPA and the executive order (which states that agencies “must prioritize efficiency and certainty over any other objectives”), the memo advises agencies to “voluntarily rely” on the now-repealed CEQ regulations for their recent and ongoing NEPA reviews. Further complicating matters, the memo “encourages agencies” to use the version of the CEQ regulations issued during the first Trump Administration, as opposed to more recent regulations adopted under President Biden (2022 and 2024). Yet another wrinkle is Seven County Infrastructure Coalition v. Eagle County, a NEPA case pending at the U.S. Supreme Court. There, the justices are considering the meaning of “reasonably foreseeable” environmental effects in a dispute about where to draw the line on upstream and downstream environmental impacts. (A decision is expected by the end of June.)
In addition to providing more nuance on the above topics, our panelists will address key questions like:
- What does all of this mean for the agency-specific NEPA procedures and practices?
- How do these developments relate to the NEPA streamlining amendments from 2023?
- What about the “permitting reform” that Congress keeps talking about?
- How will the courts handle NEPA cases moving forward?
To attend the webinar and have a chance to get your own question answered by experts, visit the registration page here.