Current Status
The Council on Environmental Quality (CEQ) finalized its Phase I rule on April 20, 2022, and its Phase II rule on May 1, 2024 implementing recent NEPA amendments among other changes. 20 Republican-led states have challenged the Phase 2 rule in federal district court.
On Dec. 10 2024, the Supreme Court will hear oral arguments in Seven County Coalition et al., v. Eagle County Colorado, et al., which asks whether NEPA “requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.”
On 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 the issue was not briefed or argued by the parties. 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.
Why it Matters
The National Environmental Policy Act (NEPA) requires federal agencies to assess the environmental impacts of certain proposed actions, including some permit decisions, adoption of agency policy, formal planning, agency projects, and other actions. NEPA provides transparency by requiring agencies to publish draft reviews and accept and respond to public comment before finalizing its review.
NEPA does not require agencies to adopt the least environmentally impactful alternative; it provides a process for agencies to follow in decision-making but does not impose a substantive outcome. However, there are many instances when the NEPA process has positively affected agency decisions by revealing important information about a project’s design, and the potential to improve benefits for nearby communities and the environment.
The Council on Environmental Quality (CEQ), in the Executive Office of the President, issues implementing regulations that outline how federal agencies must comply with NEPA. The implementing regulations give a framework but are designed to provide flexibility to each agency. Agencies must then adopt their own NEPA implementing procedures, which are reviewed by CEQ.
Key Resources
Timeline
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). Oral argument will be held 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”.
March 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.