NEPA Environmental Review Requirements

April 8, 2025 CEQ issued a draft template for federal agencies to replace their NEPA rules. Though the template is nonbinding, it includes unprecedented criteria, including recommendations that agencies not seek comments from the public on their draft procedures or issue draft environmental documents for comment before they become final. CEQ also encourages agencies to set a monetary threshold under which no NEPA review would be required.

Feb. 25, 2025 CEQ published an interim final rule removing all of the agency’s regulations implementing NEPA. The interim final rule is effective April 11, 2025, and comments are due by March 27, 2025. CEQ argued that President Trump’s revocation of the 1977 executive order removed CEQ’s regulatory authority and the “plain text of NEPA itself” does not give CEQ the authority to issue binding regulations. CEQ also argued prior Supreme Court precedent did not directly brief or address whether NEPA provides CEQ with such authority. In issuing the interim final rule, CEQ asserted that removing CEQ’s rules does not implicate reliance interests, and that the agency qualifies for a “good cause” or “interpretive rules” exception under the Administrative Procedure Act (APA) and therefore need not follow notice and comment procedures. The rule goes into effect on April 11, 2025, and comments are due by March 27, 2025.

Feb. 19, 2025 CEQ issued guidance to all federal departments and agencies on the implementation of NEPA, requiring them to revise their NEPA rules within one year to “expedite permitting approvals” and ensure consistency with the 2023 NEPA amendments under the FRA. Until agency’s rules are updated, agencies should continue with pending or ongoing NEPA analyses following their existing rules “with any adjustments needed” to be consistent with NEPA as amended, though the guidance does not state how agencies should make those adjustments. The guidance also urged agencies to use CEQ’s 2020 rule “as an initial framework” for their revisions. Other notable priorities in the guidance include:

• Agencies must prioritize “efficiency and certainty over any other policy objectives”
• NEPA documents “should not” include an environmental justice analysis in light of President Trump’s revocations of executive orders 12898 and 14096
• Agencies should “prioritize” project sponsor prepared documents
• Agencies should only consider the no action alternative if that alternative is “feasible”
• The guidance notes that the text of NEPA does not use the term “cumulative effects”
• Agencies should not seek public comment on their proposed revisions unless required to do so

Feb. 3, 2025 The District Court for the District of North Dakota granted several states’ motion for summary judgement in their challenge to the Phase II rule. The court found that the plain text of NEPA does not authorize CEQ to issue regulations binding on other federal agencies. The court vacated the Phase II rule as ultra vires, and indicated that CEQ’s 2020 rule is now reinstated. The court did not address the legality of the Phase I (2022), 2020, or 1978 rules. See State of Iowa v. Council on Environmental Quality, No. 1:24-cv-89 (D.N.D. Feb. 3, 2025).

Jan. 31, 2025 The D.C. Circuit denied rehearing Marin Audubon Society v. FAA, which had indicated in dicta that CEQ has no authority to promulgate binding NEPA regulations. Chief Judge Srinivasan (joined by a majority of active judges on the court) concurred in the denial of rehearing, concluding that rehearing en banc was not necessary because the issue of CEQ authority was “unnecessary to the panel’s disposition.” On Feb. 28, 2025, the D.C. Circuit stayed their mandate to vacate the agency order for one year to allow the agencies to revise the challenged air tour management program. No. 23-1067 (D.C. Cir. Jan. 31, 2025).

Jan 20, 2025 Trump issued an executive order, “Unleashing American Energy,” directing CEQ to provide guidance on implementing NEPA and propose rescinding CEQ’s current NEPA regulations within 30 days. The executive order also instructed the Director of the National Economic Council and the Director of the Office of Legislative Affairs to jointly prepare recommendations to Congress to “provide greater certainty in the Federal permitting process, including, but not limited to, streamlining the judicial review of the application of NEPA.” Trump separately issued an order revoking the 1977 order authorizing CEQ to issue binding regulations under NEPA.

Nov. 12, 2024 The D.C. Circuit Court of Appeals found that CEQ lacks statutory authority to issue NEPA regulations binding other federal agencies. Though neither party raised or briefed these arguments, the court independently considered whether the FAA complied with CEQ’s NEPA rules when it issued a plan governing tourist flights over four national parks in California. However, the court’s unanimous holding was confined to striking down the agencies’ action under review on separate grounds. CEQ’s Phase I and II rules remain in effect. Marin Audubon Society, et al., v. Fed. Aviation Admin. et al., No. 23-1067 (D.C. Cir.).

June 24, 2024 The Supreme Court agreed to hear a case on whether NEPA “requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.” Seven County Coalition et al., v. Eagle County Colorado, et al., No. 23-975 (US). The Court heard oral argument on Dec. 10, 2024.

May 21, 2024 20 Republican-led states challenged the Phase 2 rule in the District Court for the District of North Dakota. The states argued that the rule “illegally seeks to transform NEPA’s … procedures for environmental reviews … into a substantive set of requirements to achieve broad and vague policy goals.” The complaint argued the rule violates NEPA, the APA, and the major questions doctrine. The states asked the district court to vacate and remand the final rule; block CEQ from implementing the rule; and to reinstate the 2020 rule. State of Iowa et. al. v. Council on Envtl. Quality et al., No. 1:24-cv-00089 (D. N. Dakota).

May 1, 2024 CEQ finalized its Phase II rule (the “Bipartisan Permitting Reform Implementation Rule”) implementing NEPA. Key changes in the Phase II rule included updates to implement recent amendments to NEPA under the Fiscal Responsibility Act, new definitions affecting the scope and substance of agencies’ environmental analyses, and requirements to consider Indigenous Knowledge and strengthen early consultation with communities. See EELP’s overview of the final Phase II changes. 

Jan. 9, 2023 CEQ issued interim guidance to help agencies analyze greenhouse emissions and climate change effects when reviewing major federal actions under NEPA. The guidance went into effect immediately. 

June 3, 2023 President Biden signed the Fiscal Responsibility Act of 2023, which included several amendments to NEPA. See a redline of the Act’s changes to NEPA, and listen to EELP’s Quick Take on these amendments to NEPA.

Apr. 20, 2022 CEQ finalized its Phase 1 revisions to NEPA implementing provisions. In line with the Oct. 2021 proposed rule, the final rule restored key components of the 1978 rules, including eliminating changes to the provision on agency descriptions of the purpose and need of their actions in their environmental statements; restoring the definitions of direct and indirect effects and cumulative impacts; and removing other language that could narrow the scope of NEPA analysis.

Jan. 18, 2022 CEQ urges the Fourth Circuit to dismiss plaintiffs’ appeal for lack of standing. Wild Virginia v. Council on Environmental Quality, Docket No. 21-01839 (4th Cir). 

Jan. 2021 President Biden instructed CEQ in EO 13990 to rescind the Trump-era draft NEPA guidance on considering greenhouse gas emissions and to review and consider updating the final guidance issued in 2016. CEQ rescinded the June 2019 draft guidance on Feb. 19, 2021.

July 16, 2020 CEQ finalized new regulations implementing NEPA. The final rule changed key definitions under NEPA including “major federal action,” “effects,” and “reasonable alternatives” to exclude projects from review under NEPA and to reduce the number and type of effects and alternatives considered during review. The rule also raised the bar for comments on NEPA documents by requiring more detailed analysis and information from commenters. Environmental groups and states challenged the rule in multiple federal district courts. Wild Virginia v. Council on Envtl. Quality, No. 3:20-cv-00045 (W.D. Va.); Alaska Community Action on Toxics v. Council on Envtl. Quality, No. 3:20-cv-05199 (N.D. Cal.); Envtl. Just. Health All. v. Council on Envtl. Quality, No. 20-cv-6143 (S.D.N.Y.); California v. Council on Envtl. Quality, No. 3:20-cv-06057 (N.D. Cal.); Iowa Citizens for Cmty. Improvement v. CEQ, No. 1:20-cv-02715 (D.D.C.). All cases have since been stayed or dismissed.

June 21, 2019 CEQ released draft guidance on how federal agencies should consider greenhouse gas emissions under NEPA. If finalized, this guidance would replace the Aug. 1, 2016 guidance released by the Obama Administration and rescinded by the Trump Administration. The guidance directed agencies to “attempt to quantify a proposed action’s projected direct and reasonably foreseeable indirect GHG emissions when the amount of those emissions is substantial enough to warrant quantification, and when it is practicable to quantify them using available data and GHG quantification tools.”  

Aug. 15, 2017 President Trump signed EO 13807, which shortened the time for environmental reviews of large federally funded infrastructure projects. The order also revoked President Obama’s EO 13690, which required federal agencies to consider sea level rise and flood projections when considering agency actions, including federal funding of infrastructure. EO 13807 established the “One Federal Decision” approach to NEPA reviews for major infrastructure projects, requiring each project to have a single lead agency for the environmental review process. On April 9, 2018, twelve agencies and councils signed a Memorandum of Understanding Implementing One Federal Decision Under Executive Order 13807 “to establish a cooperative relationship for the timely processing of environmental reviews and authorization decisions for proposed major infrastructure projects”.

Mar. 28, 2017 President Trump signed EO 13783 on Promoting Energy Independence and Economic Growth, which directed CEQ to rescind final guidance issued on Aug. 1, 2016 on the Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews.

Aug. 1, 2016 CEQ finalized its Guidance on the Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews.