As noted in a previous Vibrant Environment blog post, on January 20, President Trump signed Executive Order 14154, Unleashing American Energy. Section 5 of the Order revoked the Council on Environmental Quality’s longstanding authority to adopt regulations implementing the National Environmental Policy Act, and directed CEQ by February 19 to “propose rescinding” its existing NEPA regulations and to issue new “guidance” to federal agencies on how to implement NEPA. On February 19, the CEQ’s remaining staff signed an interim final rule deleting “all iterations” of the NEPA regulations in toto, with an effective date of 45 days after publication in the Federal Register. On the same day, the staff also issued a guidance document.
The rulemaking notice provides for a 30-day comment period, but further states that while CEQ will consider and address public views, “such comments could not alter the President’s decision” ending the CEQ’s rulemaking authority. Further, CEQ will not consider any comments on the substance of the prior CEQ rules. It is unclear what, then, public comments might affect, except perhaps the timing.
Operating without governmentwide CEQ regulations will present formidable challenges to many agencies, as well as to permit applicants and to cooperating agencies (including state and tribal agencies). Federal agency practice has for the last 47 years been governed by each agency’s adopted NEPA procedures together with the CEQ regulations. In April 2025, however, the latter guidepost will disappear.
Many broadly applicable topics are not covered in specific federal agency NEPA implementing procedures. For example, the Forest Service’s NEPA procedures include copious cross-references to terms and requirements in the CEQ regulations, and provide that they are to be used in conjunction with the CEQ regulations. The Corps of Engineers’ NEPA procedures explicitly provide that they are “intended to be used only in conjunction with the CEQ regulations. Whenever the guidance in this regulation is unclear or not specific the reader is referred to the CEQ regulations.”
Many terms and procedures familiar to agencies appear only in CEQ regulations and not in NEPA itself, even as amended by the Fiscal Responsibility Act of 2023 (Public Law 118-5), which did add some statutory definitions, such as “environmental assessment,” “cooperating agency,” and “categorical exclusion.” Among the imperiled terms and concepts are “tiering” of environmental documents to prior documents, and requirements for “supplemental” EISs. Some agency procedures describe these, others do not. To what extent will courts and agencies rely on existing precedents based on the soon-to-be repealed regulations?
The CEQ guidance document advises agencies to “consider voluntarily relying on [the repealed] regulations in completing ongoing NEPA reviews or defending against challenges to reviews completed while those regulations were in effect.” However, it further “encourages agencies” to use the 2020 version of the NEPA regulations issued under the prior Trump Administration, rather than the regulations adopted (in 2022 and 2024) by the Biden Administration. While many of the outlined procedures in these regulations were similar and maintained much of the framework of the 1978 regulations, the successive regulations in some instances took diametrically opposed views of topics—such as which impacts need to be considered, and what alternatives are within an agency’s scope of analysis. While agencies labor once again to revise their NEPA procedures (which will require rulemaking in most instances), CEQ says that “agencies should continue to follow their existing practices and procedures for implementing NEPA,” consistent with the statute, the Trump executive order, and “this guidance.”
The new guidance document does not, for the most part, take positions on substantive controversies between the prior Trump and later Biden administrations on the scope and meaning of NEPA terms and analysis. However, it expressly observes that the NEPA statute does not use the term “cumulative effects,” directing agencies’ attention to the statutory term “reasonably foreseeable” effects—which may or may not lead to the same conclusion.
The guidance further instructs agencies that because President Trump has revoked all prior executive orders addressing environmental justice (EJ), “NEPA documents should not include an environmental justice analysis, to the extent that this approach is consistent with other applicable law.” Currently no agencies have adopted EJ provisions as part of their promulgated NEPA regulations, although many have such provisions in guidance documents, manuals, and standard practices. These are unlikely to constitute “other applicable law.”
However, in order to define the affected environment and evaluate alternatives, as still required by the statute, agencies will undoubtedly find it necessary to identify differential impacts, historical baseline exposures, and affected communities. Even if the Clinton Administration’s 1994 Executive Order requiring agencies to evaluate “disproportionate and highly adverse impacts” on “minority populations” and “low-income populations” has been revoked, failure to examine these impacts (however described) is likely to risk a judicial finding that the agency has not complied with its statutory duty to take a hard look at “reasonably foreseeable environmental effects.” Courts have applied the arbitrary and capricious standard to review agencies’ treatment of environmental justice impacts, even though even the prior executive order by its terms did not create any rights or obligations.
Prudent agency advisors and outside practitioners would be best guided, I think, by fairly close reliance on a half-century of NEPA practice and adherence to judicial precedent when counseling clients. Absent governmentwide regulations, and with possible future guidance likely lacking the judicial interpretive deference formerly enjoyed by the longstanding CEQ regulations, confusing times lie ahead.
Federal agencies will have 12 months to revise their NEPA procedures. CEQ advises that it will meet monthly during the interim with agency NEPA officials and with an interagency “working group” required by the Executive Order, to “share additional guidance” and “assistance to agencies.” Whether the public and NEPA practitioners will have any input into such guidance is unknown.