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guidance on implementing NEPA and to propose rescinding the NEPA implementing regulations.”⁶ At this direction, CEQ rescinded its regulations implementing NEPA, concluding that “it may lack authority to issue binding rules on agencies in the absence of the now-rescinded” Carter EO.⁷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

U.S. Department of Commerce

U.S. Department of Defense

U.S. Department of Energy

U.S. Department of Interior

U.S. Department of Transportation

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.