Recent events at the executive and judicial branches have created uncertainty around the implementation of the National Environmental Policy Act (NEPA). While we expect additional guidance soon, it’s worth taking stock of where we are today and recapping some of the recent notable developments.
Executive Order (EO) 14154, Unleashing American Energy, is a broad EO that addresses a myriad of issues ranging from federal funding, climate, and NEPA. Section 5, Unleashing Energy Dominance through Efficient Permitting, rescinds the Carter-era EO 11991 that directed the Council on Environmental Quality (CEQ) to promulgate regulations to direct implementation of NEPA. It goes further to direct the Chair of CEQ to issue guidance on implementing NEPA within 30 days (anticipated by February 19, 2025) and propose rescinding CEQ’s NEPA regulations at 40 CFR 1500 – 1508. The change to “guidance” is significant as it is interpreted as advisory and non-binding language, unlike the NEPA statute (United States Code Title 42), which remains in effect. EO 14154 also directs CEQ to convene a working group to coordinate the revision of agency-level implementing regulations for consistency and in accordance with the changes to the NEPA statute made by the Fiscal Responsibility Act of 2023 (e.g., timelines, page limits, etc.).
This policy direction builds on the District of Columbia Circuit (DC Circuit) Court of Appeals’ decision in Marin Audubon Society v. Federal Aviation Administration, Department of Transportation, and National Park Service, as discussed here. In that ruling, the DC Circuit determined that CEQ has no legal authority to issue binding regulations, as Congress did not expressly grant that authority in the NEPA statute. The decision, at the time, reflected a seismic shift in NEPA policy but the full effects of the ruling were unclear because the ruling weighed in on an issue that wasn’t before the court and did not have any immediate material effect on CEQ’s NEPA procedures.
On February 3, the U.S. District Court in North Dakota issued a summary judgment in State of Iowa et al. v. CEQ, Alaska Community Action Toxics et al., and the State of California et al. This summary judgment built upon the Marin Audubon Society v. Federal Aviation Administration decision and reaffirmed the finding that CEQ lacks authority to issue regulations. The judgement ordered that the 2024 rules that were the subject of the litigation be vacated, thus reinstating the 2020 rules promulgated during Trump’s first term.
Taken together, we are experiencing an unprecedented change to the way that we think about and implement NEPA. Considering the other policy directives from the Administration that target the evaluation of climate change, environmental justice, and other priorities of the Biden administration, the scope and scale of NEPA evaluation is likely to look much different. Agencies will likely have greater flexibility in implementing NEPA to align with each agency’s unique mission and programs which could lead to unintended delays as joint documents and adoption may become harder. We won’t know for some time how this will affect project development, but the February 19 deadline for new CEQ guidance will be an early indicator of where we are headed.
ESA is actively monitoring the dynamic policy landscape and is here to advise and support our clients as we adapt to changing processes and priorities. Do you have questions about your project and want to speak with an ESA NEPA expert? Reach out to Meredith Parkin for more information, and be sure to subscribe to our newsletter for timely regulatory updates
Date
February 6, 2025
