On February 25, the White House Council on Environmental Quality (CEQ) issued an interim final rule (IFR) rescinding the CEQ regulations implementing the National Environmental Policy Act (NEPA). On March 27, we submitted a comment, along with 25 other professors, identifying the severe challenges this rescission will create for critical infrastructure projects and other important federal activities.
The federal government’s approach to NEPA implementation has important real-world consequences. NEPA requires federal agencies to consider the effect proposed actions may have on the environment, disclose them to the public, and provide an opportunity for communities, businesses, and members of the public to provide feedback on decisions that may affect them.
Since 1978, CEQ has maintained regulations to establish NEPA procedures for all federal agencies, creating a centralized point of reference for agencies, project proponents, community members, and judges. Eliminating this unified body of regulations for the executive branch — which is what the IFR accomplishes — and, instead, implementing NEPA entirely through dozens of distinct and independent agency-specific procedures, will increase inconsistency and unpredictability and waste time and resources. It’s good for nobody, not even the industries (like mining and fossil fuel companies) the president appears hellbent on promoting.
This is how we got here:
- On November 12, 2024, the D.C. Circuit issued a decision in Marin Audubon Society v. FAA that purported to decide that CEQ lacked authority to issue binding regulations, even though neither of the parties had raised or briefed that issue. Further, the decision broke with extensive precedent. The U.S. Supreme Court and eleven circuit courts have consistently considered CEQ’s regulations to be binding. In January, a majority of the judges on the D.C. Circuit signed a statement explaining that en banc rehearing in the case is unwarranted because the panel opinion’s discussion of CEQ authority was unnecessary dicta.
- On January 20, 2025, President Trump signed Executive Order 14154 on Unleashing American Energy that revokes a 1977 executive order directing CEQ to issue regulations to establish consistent NEPA procedures for all executive branch agencies. E.O. 14154 also ordered CEQ to propose rescinding the CEQ NEPA regulations.
- On February 3, 2025, the North Dakota district court issued an order in Iowa v. CEQ adopting the reasoning in Marin Audubon to rule that CEQ lacks regulatory authority and, therefore, that CEQ’s 2024 regulations are invalid.
- On February 25, 2025, CEQ publishes the IFR revoking its regulations because the president had removed its “prior asserted basis for issuing and maintaining its NEPA regulations.” On the same day, CEQ issued a memorandum directing agencies to complete independent, agency-specific NEPA procedures within one year.
Our comment identifies the serious challenges that federal agencies and private parties seeking federal approvals or financial assistance will face in the wake of the IFR. These challenges will begin immediately and will persist even after federal agencies adopt their own independent procedures. That is because the lack of a unified body of cross-government regulations will create friction and unpredictability in interagency coordination on environmental reviews, and this will increase expense, delay, and litigation.
Our comment also explains that contrary to Marin Audubon Society v. FAA and Iowa v. CEQ, CEQ had authority to issue binding regulations.
That authority arose from the president, whose authority to direct the implementation of NEPA arises from three unusual features of the statute: (1) NEPA imposes obligations limited to the executive branch, (2) those obligations encompass all executive branch agencies so, in the absence of a legislative direction, only the president can oversee implementation of the statute in its entirety, and (3) implementing NEPA often requires multiple agencies to coordinate together, rendering the establishment of a common set of procedures for all federal agencies integral to efficient and predictable implementation. In light of that presidential authority to, President Carter lawfully delegated authority to CEQ to issue binding regulations.
In any event, our comment explains, Congress has ratified or acquiesced in the existence and delegation of this presidential authority by enacting at least 20 statutes over 25 years that specifically reference the CEQ regulations and enacting other laws that rely on the CEQ regulations to be effective.
Another, somewhat overlapping, group of law professors filed a separate comment laying out a related argument that NEPA directly vested CEQ with the authority to issue government-wide regulations. That comment also objects to CEQ issuing an IFR, rather than proceeding through the ordinary notice and comment process.
These legal arguments matter because they reveal that elimination of CEQ’s regulations is neither necessary nor inevitable. The president could lawfully redelegate authority to CEQ and CEQ could initiate a process to revise its regulations in keeping with the administration’s policy objectives, as it did during President Trump’s first term.
In other words, Trump has chosen to throw the environmental review process into disarray. He is responsible for the delays this misguided approach to environmental review will cause for critical federal activities.
