Publication
Freeing Agencies from Conflicting National Environmental Policy Act Regulations
By: Lucas J. Narducci, Michael C. Ford, and Amanda A. Reeve
On July 3, 2025, several federal agencies published Interim Final Rules or Final Rules freeing themselves of legally and statutorily conflicting regulations implementing the National Environmental Policy Act (NEPA) in response to (1) the Council on Environmental Quality’s (CEQ) recission1 of its NEPA implementing regulations; (2) the U.S. Supreme Court (the Court) decision2 in Seven County Infrastructure Coalition, et al. v. Eagle County, Colorado, et al., (Seven County); and (3) the NEPA amendments passed3 by Congress via the Fiscal Responsibility Act of 2023 (FRA).
In 1977, President Carter issued an Executive Order4 (Carter EO) directing CEQ to “[i]ssue regulations to Federal agencies for the implementation of the procedural provisions of [NEPA]” and stipulated some of the requirements to be incorporated therein. On January 20, 2025, President Trump issued EO 141545 rescinding the Carter EO and directing CEQ “to issue guidance on implementing NEPA and to propose rescinding the NEPA implementing regulations.”6 At this direction, CEQ rescinded its regulations implementing NEPA, concluding that “it may lack authority to issue binding rules on agencies in the absence of the now-rescinded” Carter EO.7
Agencies are responding to the Court’s holding in the Seven County case in revamping their NEPA regulations, as the Court clarified that:
NEPA imposes no substantive environmental obligations or restrictions. [It] is a purely procedural statute…Importantly, NEPA does not require the agency to weigh environmental consequences in any particular way. Rather, an agency may weigh environmental consequences as the agency reasonably sees fit under its governing statute and any relevant substantive environmental laws. Simply stated, NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decision making, not paralyze it.8
Finally, agencies are also updating their NEPA regulations to conform to the significant procedural amendments Congress made to NEPA via passage of the FRA in 2023. While some agencies are just removing certain regulation or making minimal changes, other agencies are using this opportunity to “revise, move and republish, or remove portions of [its] NEPA regulations, as well as add new portions, given the CEQ NEPA regulations no longer provide a foundation for [the agencies’] NEPA regulations and leave the [agencies] without necessary interpretation of, and implementing procedures for, NEPA.”9 The following six agencies have issued Interim Final Rules or Final Rules on NEPA, most of which are effective July 3, 2025, and it is likely that more such actions will be forthcoming by additional agencies in the near future:
U.S. Department of Agriculture
- Agriculture [36 CFR Part 220]
- Interim Final Rule and Request for Comment on NEPA
- Comments due: July 30, 2025
- Interim Final Rule and Request for Comment on NEPA
U.S. Department of Commerce
- Economic Development Administration [13 CFR Part 302]
- Final Rule on Amendment to Environment Regulation
U.S. Department of Defense
- Department of the Army [32 CFR Part 651]
- Interim Final Rule on Environmental Analysis of Army Actions (AR 200-2)
- Comments due: August 4, 2025
- Interim Final Rule on Environmental Analysis of Army Actions (AR 200-2)
- Department of the Army, Corps of Engineers [33 CFR Part 230]
- Interim Final Rule and Request for Comment on Procedures for Implementing NEPA; Removal
- Comments due: August 4, 2025
- Interim Final Rule and Request for Comment on Procedures for Implementing NEPA; Removal
- Department of the Army, Corps of Engineers [33 CFR Parts 320, 325, and 333]
- Interim Final Rule and Request for Comment on Procedures for Implementing NEPA; Processing of Department of the Army Permits.
- Comments due: August 4, 2025
- Interim Final Rule and Request for Comment on Procedures for Implementing NEPA; Processing of Department of the Army Permits.
- Department of the Navy [32 CFR Part 775]
- Interim Final Rule on Recission of Procedures for Implementing the NEPA
- Comments due: August 4, 2025
- Interim Final Rule on Recission of Procedures for Implementing the NEPA
U.S. Department of Energy
- Federal Energy Regulatory Commission [18 CFR Parts 380, 385]
- Final Rule on Removal of References to the Council of Environmental Quality’s Rescinded Regulations.
- Effective date: August 18, 2025
- Final Rule on Removal of References to the Council of Environmental Quality’s Rescinded Regulations.
U.S. Department of Interior
- Office of the Secretary [43 CFR Part 46]
- Interim Final Rule and Request for Comments on NEPA Implementing Regulations
- Comments due: August 4, 2025
- Interim Final Rule and Request for Comments on NEPA Implementing Regulations
U.S. Department of Transportation
- Federal Highway Administration [23 CFR Part 771]
- Federal Railroad Administration [49 CFR Part 264]
- Federal Transit Administration [49 CFR Part 622]
- Interim Final Rule on Revisions of NEPA Regulations
- Comments due: August 4, 2025
- Interim Final Rule on Revisions of NEPA Regulations
- National Highway Traffic Safety Administration [49 CFR Part 520]
- Interim Final Rule and Request for Comments on Recission of NHTSA’s 1975 Procedures for Considering Environmental Impacts
- Comments due: August 4, 2025
- Interim Final Rule and Request for Comments on Recission of NHTSA’s 1975 Procedures for Considering Environmental Impacts
- Office of the Secretary
- Notice of Availability and Request for Comments on Procedures for Considering Environmental Impacts
- Comments due: August 4, 2025
- Notice of Availability and Request for Comments on Procedures for Considering Environmental Impacts
The rapidly changing NEPA landscape will impact projects requiring NEPA review. We will continue to monitor and report on further NEPA developments as they occur.
Footnotes
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Council on Environmental Quality Interim Final Rule & Request for Comments on Removal of National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 10610-10616 (Tuesday, February 25, 2025).
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Seven County Infrastructure Coalition, et al. v. Eagle County, Colorado, et al., 145 S. Ct. 1497 (May 29, 2025).
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Fiscal Responsibility Act of 2023, Public Law 188-5 (June 3, 2023).
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President Jimmy Carter, Executive Order 11991: Relating to Protection and Enhancement of Environmental Quality as of May 24, 1977, 42 Fed. Reg. 26967-26968 (Wednesday, May 25, 1977).
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President Donald J. Trump, Executive Order 14154: Unleashing American Energy as of January 20, 2025, 90 Fed. Reg. 8353-8359 (Wednesday, January 29, 2025).
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90 Fed. Reg. 10611
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Id.
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145 S. Ct. at 1497.
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90 Fed. Reg. 29632-29674 at 29632.
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