On February 25, 2025, the White House Council on Environmental Quality (CEQ) published in the Federal Register an interim final rule proposing to rescind its regulations implementing the National Environmental Policy Act (NEPA), a 1969 statute that requires all federal agencies to consider the environmental effects of their projects or actions. A week earlier, CEQ issued guidance to agencies on compliance with NEPA in the absence of the CEQ regulations, and on the implementation of President Trump’s Executive Order (EO) 14154, Unleashing American Energy, which directs agencies to revise or establish their own NEPA procedures to expedite and simplify permitting processes.

The interim final rule, which seems to invite legal challenge, as described below, does not eliminate NEPA’s basic statutory requirements or specific agency regulations that implement NEPA. However, it does very abruptly eliminate some of the more specific procedural directions that agencies, applicants, the public and even courts have looked to for nearly 50 years to define the NEPA process. The guidance, meanwhile, suggests that agencies should continue to conduct NEPA reviews as they have in the past, with some notable differences such as the elimination of environmental justice analyses.

Interim Final Rule: Removal of CEQ’s NEPA Implementing Regulations

CEQ has had regulations governing federal agencies’ compliance with NEPA since 1978, in response to President Carter’s 1977 EO 11911, Relating to Protection and Enhancement of Environmental Quality, which directed CEQ to promulgate regulations for implementing NEPA and required agencies to comply with those regulations. President Trump’s EO 14154, among other things, rescinded EO 11911, and directed CEQ to issue guidance on agencies’ implementation of NEPA and to propose rescinding CEQ’s own NEPA regulations.

There are several notable aspects of the interim final rule. The first concerns the asserted legal reason for rescinding CEQ’s NEPA regulations. As CEQ explained, because it cited EO 11991 as authority in 1978 when it first issued binding NEPA regulations, CEQ believes the rescission of EO 11991 may leave CEQ without authority to issue binding rules on agencies. Therefore, CEQ determined it was appropriate to remove “all iterations” of its NEPA implementing regulations. This reasoning departs from that in two recent cases, also noted by CEQ, which held that CEQ’s NEPA regulations were invalid (or “ultra vires”) because CEQ lacked authority to promulgate binding regulations in the first place, notwithstanding the purported grant of such authority in President Carter’s EO 11911.

In Marin Audubon Society v. Federal Aviation Administration, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit found, sua sponte, that NEPA did not grant CEQ the authority to promulgate binding regulations. The court held that authority to issue binding regulations must be conferred by statute, and that nothing in the NEPA statute explicitly or impliedly empowered CEQ with that authority. The court also explained that it was not bound by the Supreme Court’s previous statements seemingly approving of CEQ’s exercise of regulatory authority, reasoning that they were not legal holdings and that, in any event, previous references to judicial deference could not withstand the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo overturning the doctrine of Chevron deference.[1] Then, in February 2025, the U.S. District Court for the District of North Dakota in Iowa v. CEQ similarly held that EO 11991 “was not a valid exercise of the President’s power,” that CEQ therefore lacked authority to issue binding regulations, and that CEQ’s most recent such regulations from 2024 (which were the ones challenged in the action) “exceeded its authority.” Notably, the Iowa court only vacated the 2024 regulations, leaving the 2020 regulations (from the first Trump Administration) in place, as amended by the Biden Administration’s 2022 “Phase 1” revisions, because the plaintiffs in the case had not challenged them. However, the court’s holding suggested that CEQ likely lacked authority to promulgate the 2020 regulations as well, and that “the last valid guidelines from CEQ were those set out under President Nixon.”

The interim final rule invokes the “good cause” exception in the Administrative Procedure Act, which allows agencies to issue final rules without providing the full scope of traditional notice-and-comment procedures when the agency finds that notice-and-comment is “impracticable, unnecessary, or contrary to the public interest.” While the interim final rule notes that “courts have questioned CEQ’s rulemaking authority,” it seems to stop short of fully endorsing those decisions (one of which may only be dicta), and appears to rely primarily on the rescission of EO 11991 as the basis for rescinding CEQ’s prior regulations, stating that it has not identified any other authority on which to rely in issuing binding regulations. CEQ will provide a 30-day public comment period to consider comments on whether it does have such authority, and there will likely be numerous comments, as well as potential legal challenges, on this issue and the legality of simply rescinding the regulations without full notice and comment or other review process (including NEPA review of the rescission).

Second, as the interim final rule notes, many agencies have their own NEPA implementing procedures that largely conform to CEQ’s regulations, and which are presumably still valid because they were promulgated pursuant to the agencies’ independent regulatory authority. The interim final rule emphasizes that agencies “remain free to use or amend those procedures,” and that “agencies should, in defending actions they have taken, continue to rely on the version of CEQ’s regulations that was in effect at the time that the agency action under challenge was completed.” Notably, many agency regulations incorporate the CEQ regulations by reference, while other agencies have relied on CEQ’s regulations without promulgating their own.

Finally, given President Trump’s revocation of EO 11991 and the decisions in the Marin Audubon and Iowa cases, it is unlikely that CEQ will issue new NEPA regulations absent authorization from Congress. As a result, responsibility for NEPA implementation will shift to individual agencies, subject to non-binding guidance from CEQ, increasing the potential for greater variation in NEPA procedures across the federal government.

Guidance to Agencies on Implementation of NEPA and EO 14154

EO 14154 directs CEQ to provide guidance to agencies on implementing NEPA, requiring the guidance and resulting regulations to “expedite permitting approvals and meet deadlines established in the Fiscal Responsibility Act of 2023” (FRA).  As covered in previous blog posts, the FRA (which was signed into law by President Biden) included several significant changes to NEPA, which were then implemented in CEQ’s 2024 NEPA regulations. While the 2024 regulations were vacated by the district court in the Iowa case and are being rescinded by the interim final rule as noted above, the FRA itself codified many existing regulations and executive orders, preventing future administrations from changing them through the regulatory process.

While CEQ’s guidance notes the statutory requirements of the FRA, it includes additional policy objectives of the Trump Administration. For example, the guidance directs agencies to analyze the “reasonably foreseeable effects” of a proposed action under NEPA, regardless of whether those effects might be characterized as “cumulative.” This may limit the extent to which agencies are required to analyze projects’ climate-related effects, which are often cumulative and indirect. Notably, the guidance also directs that NEPA documents now “should not include an environmental justice analysis,” in light of President Trump’s EOs 14148 and 14173 revoking prior EOs that required agencies to consider the environmental justice impacts of projects, and the vacatur/rescission of the 2024 CEQ regulations that codified the incorporation of environmental justice analyses into NEPA documents. Finally, the guidance encourages agencies to use CEQ’s 2020 NEPA regulations from the first Trump Administration, as amended in 2022, as an initial framework for the development of revisions to, or promulgation of, agencies’ own NEPA implementing procedures.

[1] The D.C. Circuit later denied en banc rehearing but issued a concurrence, joined by a majority of the court, characterizing the issue of CEQ’s regulatory authority as not essential to the outcome of the case (i.e., dicta).