On February 25, 2025, the Council on Environmental Quality (CEQ), the advisory agency within the Executive Office of the President meant to assist and advise the President on certain environmental matters including the administration of the National Environmental Protection Act (NEPA’), issued an interim final rule removing all of CEQ’s NEPA implementing regulations from the Federal register. This rule goes into effect on April 11, 2025, and has a public comments period running until March 27, 2025. This comes in response to two court rulings and two executive orders (E.O.s) that have challenged CEQ’s regulatory authority in the past few months.

NEPA

NEPA requires federal agencies to review the environmental impact of “Major Federal actions” such as issuing permits, providing federal funding, and issuing regulations. In 1978, in response to an executive order issued by President Carter, the Council on Environmental Quality issued regulations that created a system that required all federal agencies to complete an environmental impact statement, an environmental assessment, or to determine that the action qualifies for a “categorical exclusion” whenever undertaking a of “Major Federal actions.” This system has

Backdrop

On November 12, 2024, the D.C. Circuit Court of Appeals ruled in Marin Audubon Society v. Federal Aviation Authority t that CEQ’s NEPA implementing regulations are beyond the scope of their powers because the agency lacks congressional authorization to promulgate binding regulations. On February 3, 2025, the District Court for the District of North Dakota decided Iowa v. CEQ, adopting the reasoning of Marin Audubon Society found that CEQ lacks statutory authority to promulgate binding rules implementing NEPA.

Further, the Trump administration signed E.O. 14154, Unleashing American Energy, which revoked prior E.O.s dating back to the Carter administration granting CEQ authority to promulgate regulations to implement procedures for the NEPA process and directed CEQ to issue guidance on implementing NEPA and to propose rescinding the NEPA implementing regulations.

Finally, on February 19, 2025, CEQ issued a new Memorandum on the Implementation of NEPA to all federal departments and agencies pursuant to E.O. 14154’s directive to issue new guidance “expedit[ing] and simplify[ing] the permitting process” and the NEPA process.

Effects

The Memorandum on the Implementation of NEPA “encourages” agencies to use the CEQ regulations issued during the first Trump Administration as “an initial framework” or “consider voluntarily relying” on CEQ regulations for ongoing NEPA reviews and lawsuits on NEPA reviews completed while the regulations were still in effect until agencies individually revise or establish their own NEPA implementing procedures by February 19, 2026. This lack of concrete guidance on whether an agency should voluntarily follow the 2020 CEQ NEPA regulations or rely on the statutory text and any agency-specific NEPA regulations as the basis for their NEPA reviews combined with the differences between the level of detail in individual agency NEPA regulations, could result in inconsistent approaches across agencies.

Similarly, that uncertainty will likely provide additional grounds for challenges to forthcoming NEPA reviews and the validity of the Interim Final Rule itself. Until courts establish a new regime of NEPA review in the post-CEQ NEPA regulations world, the future for NEPA lawsuits will likely be fact and court-specific, potentially leading to greater uncertainty.

Additionally, while CEQ’s Memorandum expressly states that “[a]gencies should not delay pending or ongoing NEPA analyses while undertaking these revisions,” the removal of a regulatory structure that has been in place for nearly 50 years may cause delays in the NEPA review process in the short-term.