In late February 2025, the Council on Environmental Quality (“CEQ”) announced that it will rescind all of its regulations in compliance with a court decision that found CEQ lacked any authority to adopt regulations. CEQ is the agency responsible for implementing the National Environmental Policy Act (“NEPA”) and issued its first round of regulations in 1978 after President Carter drafted an Executive Order directing the agency to do so. Since that time, CEQ has issued regulations on numerous occasions, including as recently as last year. However, following the recent court decision, CEQ will no longer issue binding regulations. Going forward, it appears that federal agencies will need to draft their own rules and regulations regarding NEPA compliance.
Background
NEPA became law on January 1, 1970. Congress established that the primary purpose of NEPA is to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment[.]” 42 U.S.C. § 4321. NEPA works to achieve that goal by requiring all federal agencies to issue a “detailed statement” describing the “reasonably foreseeable environmental effects” of their proposed agency actions. 42 U.S.C. § 4332. In other words, NEPA requires federal agencies to document the expected environmental impacts of their proposed actions.
Along with establishing this documentation requirement for all federal agencies, NEPA also created CEQ. NEPA declares that “[t]here is created in the Executive Office of the President a Council on Environmental Quality.” 42 U.S.C. § 4342. From there, NEPA goes on to outline eight duties that CEQ will be responsible for carrying out, including developing and recommending to the President policies to improve environmental quality, conducing investigations and research into ecological systems and the environment, and making annual reports to the President on the state and condition of the environment. 42 U.S.C. § 4344. Of the duties Congress specifically assigned to CEQ through the text of NEPA, none explicitly authorize CEQ to issue regulations. Instead, NEPA establishes that federal agencies shall “identify and develop methods and procedures, in consultation with [CEQ] […] which will ensure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking[.]” 42 U.S.C. § 4332(B). Rather than directing CEQ to issue regulations directing agencies on how to comply with NEPA, Congress established that the agencies would work with CEQ to bring their own agency procedures in line with the requirements of NEPA.
For nearly a decade after NEPA was passed, CEQ did not issue any regulations. In 1977, President Carter signed an Executive Order that directed CEQ to “[i]ssue regulations to Federal agencies for the implementation of the procedural provisions of [NEPA].” The following year, CEQ adopted binding regulations outlining the NEPA process for the very first time. In the decades since, CEQ has issued various regulations, including some issued in 2024 to help bring the regulatory scheme in-line with recent statutory amendments made to NEPA by the Fiscal Responsibility Act of 2023 (“FRA”).
On November 12, 2024, the D.C. Circuit Court of Appeals released its decision in Marin Audubon Soc’y v. Fed. Aviation Admin., No. 23-1067 (D.C. Cir. 2024). While the question before the court in that case was whether the National Parks Service had properly complied with NEPA prior to authorizing tourism flights over four parks in northern California, the decision was largely focused on CEQ’s authority to issue regulations. Ultimately, the D.C. Circuit concluded that CEQ did not have rulemaking authority because nothing in the text of NEPA directed CEQ to adopt regulations. According to the court, the 1977 Executive Order did not grant CEQ the ability to issue binding regulations because only Congress, not the President, can bestow that authority upon agencies. More information on that decision is available here.
Although the D.C. Circuit concluded that CEQ did not have rulemaking authority, it did not order CEQ to rescind its regulations. However, three months after the D.C. Circuit issued its decision, a federal court in North Dakota issued its on decision regarding CEQ’s ability to adopt binding regulations. In State of Iowa v. Council on Envt’l Quality, No. 1:24-cv-00089 (D. N.D. Feb. 3, 2025), the court concluded that CEQ did not have authority to issue regulations and vacated the rules that CEQ had finalized in 2024. For a closer look at that decision, click here. Following these two decisions, CEQ has announced that it will be rescinding all of its regulations.
CEQ Rescinds Regs
In an interim final rule published in the Federal Register on February 25, 2025, CEQ announced that it was rescinding all of its regulations. CEQ cited the cases from the D.C. Circuit and the North Dakota district court along with an Executive Order signed by President Trump to overturn President Carter’s 1977 Executive Order as the basis for its decision.
According to the interim final rule, CEQ would formally rescind its regulations on April 11, 2025. The rule is straightforward that starting on that day, the NEPA implementing regulations codified at 40 C.F.R. parts 1500-1508 would be removed from the Federal Register and will no longer be in effect. Starting April 11, federal agencies will rely on their own policies and procedures for complying with NEPA. While CEQ notes that it does not believe a comment period is legally required for the interim final rule, it has nevertheless opened a 30-day period of public comment that will remain open through March 27, 2025. Those interested in submitting a comment may do so here.
Directions to Federal Agencies
To accompany its interim final decision, CEQ has released a memorandum addressed to the heads of federal departments and agencies with guidance on how to proceed with NEPA compliance after CEQ’s NEPA implementing regulations are formally rescinded. The document directs all federal agencies to either revise their NEPA implementing procedures to conform with the text of NEPA as amended by the FRA or to establish such procedures if an agency does not yet have any. As a framework for revising or establishing NEPA procedures, CEQ specifically encourages agencies to use NEPA regulations that CEQ finalized in early 2020 but were either rescinded or revised by later rulemaking efforts finalized in 2022 and 2024. More information on the 2020 NEPA regulations is available here.
The memorandum outlines various considerations that federal agencies should take into account when revising or establishing their NEPA implementing procedures. To encourage consistency and predictability across the federal government, CEQ notes that all agency implementing procedures should do the following: clearly indicate which agency actions are subject to NEPA and ensure that the NEPA process begins “at the earliest reasonable time”; identify agency actions that are not subject to NEPA; establish how the agency will conduct supplementary NEPA processes; determine how the agency will identify a lead agency when carrying out a NEPA analysis for an action that involves multiple agencies; establish protocols for engaging with state, tribal, and local governments; establish protocols for public involvement; include procedures for concluding or terminating the NEPA process; include processes for emergency actions; and include procedures to guide project sponsors on how to complete the NEPA process. Additionally, CEQ notes that when agencies are drafting NEPA documents going forward, they should only consider alternatives to the proposed agency action that are “technically and economically feasible and that meet the purpose and need for the proposed action.” CEQ also emphasizes that when agencies are analyzing the “reasonably foreseeable effects” of their proposed actions, they should rely on the text of NEPA which does not direct agencies to consider the “cumulative effects” of their proposed actions. Consideration of the “cumulative effects” of an agency’s proposed action has been a part of the NEPA process for decades but was only added to the process through CEQ’s implementing regulations.
Throughout the memorandum, CEQ emphasizes that agencies should “continue to follow their existing practices and procedures for implementing NEPA,” and that they “should not delay pending or ongoing NEPA analyses[.]” Additionally, CEQ notes that agencies that are completing ongoing NEPA reviews or defending challenges to past NEPA reviews in court should consider voluntarily relying on the CEQ regulations that were in place at the time the agency initiated the NEPA process. Finally, the memorandum directs agencies to complete the revision or establishment of their NEPA procedures by February 2026.
Going Forward
Beginning on April 11, 2025, CEQ’s regulations to implement NEPA will be formally rescinded. For the foreseeable future, NEPA will be implemented according to the policies and procedures established by federal agencies. Many agencies already have such procedures in place. Those that do not are nevertheless likely to be familiar with the NEPA process that has been largely unchanged since the 1970s. While it is possible that some agencies may seek to make changes to how they conduct the NEPA process, all agencies will still need to comply with the statutory requirements outlined in the text of NEPA.
To read the interim final rule, click here.
To read the memorandum from CEQ, click here.
To read the text of NEPA, click here.