The Three Things You Should Know About the Council on Environmental Quality’s Removal of its National Environmental Policy Act Implementing Regulations

On February 25, 2025, the Council on Environmental Quality (CEQ) issued an interim final rule[1] rescinding its regulations under the National Environmental Policy Act (NEPA). The CEQ’s action, in response to President Trump’s Unleashing American Energy Executive Order,[2] comes fifty-six years after Congress enacted NEPA and created the CEQ, and fifty-five years after President Nixon issued an Executive Order instructing the CEQ to “[i]ssue guidelines to Federal agencies for the preparation of” the “detailed statements” NEPA required.[3] Since then, four subsequent presidents have issued executive orders or directed the CEQ to promulgate regulations that have weathered a myriad of court challenges, including two recent cases that determined the CEQ lacks authority to issue binding rules on agencies.

What You Need to Know

The Council on Environmental Quality (CEQ) issued a rule rescinding its National Environmental Policy Act (NEPA) regulations, effective April 11, 2025. This follows recent court rulings that found that the CEQ lacks the authority to issue binding NEPA regulations.
The removal of the CEQ's overarching regulations may lead to inconsistencies among agency-specific NEPA regulations. In the short term, however, the CEQ is encouraging federal agencies to follow existing procedures.
The CEQ has also issued guidance directing federal agencies to revise their agency-specific NEPA requirements in the spirit of permitting efficiency.

President Trump’s Unleashing American Energy Executive Order,[4] which among other things directs Federal agencies to change how they conduct NEPA reviews in order to expedite and simplify the federal permitting process, has sweeping ramifications that go beyond energy projects, as a broad range of industries must comply with NEPA requirements. In addition to rescinding its regulations, the CEQ has issued guidance directing federal agencies to revise their agency-specific NEPA requirements in the spirit of permitting efficiency. While increasing permitting efficiency makes great sense and speeding up the NEPA process is inherently attractive to project developers, without final resolution of the CEQ’s and the President’s authority, this objective may remain elusive.

Here are the three things you should know about the rescission of the NEPA regulations.

Things may not change immediately. In a memorandum issued to agencies simultaneously with the rescission of its NEPA regulations, the CEQ is encouraging agencies to continue following their existing practices and procedures for implementing NEPA while revisions to agency-specific NEPA regulations are undertaken.[5] The CEQ notes that “the removal of CEQ’s regulations does not strip agencies of discretion to continue following similar procedures,”[6] and that “agencies should consider voluntarily relying on” the CEQ’s soon-to-be-rescinded regulations “in completing ongoing NEPA reviews or defending against challenges to reviews competed while those regulations were in effect.”[7] Until individual permitting agencies revise their respective NEPA regulations or procedures in accordance with President Trump’s Executive Order—a process which will likely take many months—NEPA reviews may look relatively consistent to what has occurred recently.
Be aware of inconsistencies between agency-specific NEPA regulations. While NEPA established the CEQ to act as an advisory agency, other federal agencies have established their own agency-specific NEPA regulations. The CEQ’s interim final rule does not directly affect those agency-specific regulations. Entities seeking federal authorizations should be aware of agency-specific NEPA regulations and how they may impact environmental reviews in the absence of the CEQ’s regulations. This also raises the risk of potentially inconsistent NEPA implementation across agencies that have differing organic statutes and permitting programs.
Courts may be wary of shifting NEPA interpretations. The CEQ’s notice reflects an effort to apply NEPA in a way that is consistent with the text of the NEPA statute. Recall, however, that in June 2024, the U.S. Supreme Court did away with the concept of Chevron deference, which essentially held that courts had an obligation to defer to an agency’s reasonable interpretation of a statute. Now, in accordance with the Supreme Court’s Loper Bright decision, the final interpretation of a statute is within the province of courts.[8] Under Loper Bright, agency interpretations issued contemporaneously with a statute, and which have remained consistent over time, may be especially useful in determining the statute’s meaning.[9] The opposite is also true. A change in an agency’s interpretation—even if the agency characterizes the change as “reasonable”—may be subject to extra judicial scrutiny. Expect litigation in this area.

How Did We Get Here?

President Nixon signed NEPA into law on January 1, 1970. NEPA requires federal agencies to prepare a “detailed statement” for proposed “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Federal agencies assess the environmental impact of their actions through Environmental Impact Statements or Environmental Assessments. The law also specifically directs federal agencies to develop procedures implementing NEPA. NEPA does not clearly grant the CEQ authority to promulgate regulations. Instead, it authorizes the CEQ to “review and appraise” agencies’ compliance with NEPA and make recommendations to the President.

Although NEPA was originally passed with bipartisan support, NEPA’s enactment set the stage for decades of litigation and a cycle of regulatory whiplash between presidential administrations.[10] For the first several years of NEPA’s life, the CEQ issued guidelines (not binding regulations) to Federal agencies directing them on how to develop their own NEPA procedures. Federal agencies and courts were forced to interpret NEPA’s generalized (and arguably vague) statutory text. This resulted in nearly 70 different sets of agency NEPA regulations, inconsistent agency practices and procedures, and a desire amongst the regulated community for a more uniform approach to implementing NEPA.[11] In 1978, the CEQ promulgated NEPA regulations for the first time in response to President Carter’s 1977 Executive Order 11991. The CEQ’s NEPA regulations were updated during the Reagan, Trump, and Biden administrations in 1984, 2020, and 2024, respectively. Yet even with the CEQ’s NEPA regulations on the books, uniformity in NEPA review and implementation across agencies was never achieved. This is because NEPA requires each federal agency to promulgate its own NEPA regulations, presumably taking account of the CEQ’s advice and recommendations.

Complicating matters even further, Courts have questioned whether the CEQ has any rulemaking authority at all. In Marin Audubon Society, the U.S. Court of Appeals for the District of Columbia found the CEQ lacked authority to promulgate its Biden-era NEPA regulations. Although the CEQ’s rulemaking authority was not directly at issue, the Court questioned whether President Carter’s 1977 Executive Order unlawfully converted the CEQ from an advisory body to a regulatory agency. The court viewed the CEQ’s authority to promulgate binding regulations as a separation of powers issue that it was required to weigh in on. The Court found that the CEQ improperly attempted to derive its NEPA rulemaking authority from an executive order rather than the law itself. According to the court, an executive order “is not ‘law’ within the meaning of the Constitution.” Then, in February 2025, a North Dakota Federal district court vacated the CEQ’s Biden-era NEPA regulations, finding that the CEQ lacked statutory authority to promulgate NEPA regulations in the first place.[12]

History Repeating Itself?

The CEQ’s February 25, 2025 interim final rule rescinds CEQ’s NEPA regulations in response to President Trump’s directive and consistent with recent court rulings finding the CEQ lacks the authority to promulgate NEPA regulations. Guidance issued by the CEQ directs federal agencies to revise their NEPA procedures by February 19, 2026, with a particular focus on revisions that will expedite permitting approvals and foster simplified NEPA reviews. In a flashback to the pre-1978 NEPA era, the CEQ’s guidance makes a number of recommendations for agencies to incorporate when revising their NEPA procedures. Notably, the CEQ encourages agencies to exclude any requirements for an environmental justice analysis in light of the revocation of prior Executive Orders pertaining to environmental justice. Further, the CEQ suggests that agencies should consider only “reasonably foreseeable” effects, regardless of whether those effects may be characterized as “cumulative.” This is an area which has been subject to significant litigation.

What Happens Next?

The interim final rule is effective April 11, 2025. The rule does not eliminate NEPA’s statutory requirements. The CEQ has issued guidance describing how agencies should proceed with NEPA reviews while individual agencies assess what changes may need to be made to agency-specific NEPA regulations between now and February 2026.[13] The CEQ urges agencies to continue following their existing NEPA procedures consistent with (1) the text of NEPA, (2) President Trump’s Executive Order, and (3) the CEQ’s guidance accompanying its interim final rule. Notably, the CEQ’s guidance suggests agencies should consider voluntarily relying on the CEQ’s soon-to-be-rescinded regulations in completing ongoing NEPA reviews or defending against challenges to reviews completed while those regulations were in effect.

As this process shakes out, federal agency reliance on varying sources of authority may result in inconsistent NEPA implementation approaches across agencies (which have different organic statutes and permitting programs), potentially creating uncertainty for permit applicants similar to the pre-1978 NEPA era. Such uncertainty suggests project proponents will need to be especially vigilant in participating in the NEPA process to protect the record and demonstrate statutory compliance, as uncertainty creates additional litigation risk for NEPA reviews. Third-party project opponents, as they have done in the past, may argue that an agency’s approach to NEPA does not comply with NEPA’s statutory text, or that reliance on President Trump’s Executive Order and the CEQ’s directive does not comport with NEPA’s mandate. We expect this increased uncertainty and litigation risk to continue until there is more clarity as to the standards for conducting NEPA reviews. This additional clarity may come through agency action or judicial review.

Public Comment Opportunities

The CEQ will accept public comments on the interim final rule until March 27, 2025. The rule becomes effective on April 11, 2025. Notably, the CEQ published its interim final rule in an expedited fashion without going through traditional public notice and comment procedures under the Administrative Procedure Act (APA). The CEQ relied on a provision in the APA that allows agencies to issue regulations and make them effective immediately without traditional public notice and comment when the agency finds, for good cause, that public notice and comment is “impracticable, unnecessary, or contrary to public interest.” The CEQ’s reliance on this rulemaking exception in the APA may expose the agency to legal challenges alleging that the CEQ did not have good cause to circumvent the traditional public notice and comment process.

For more information about the Council on Environmental Quality’s notice and its implications for the future, do not hesitate to reach out to one of the authors listed here or your regular Saul Ewing attorney.