NEPA loses its regs

On Jan. 1, 1970, President Richard Nixon signed the National Environmental Policy Act (NEPA) into law. As a procedural law at just over four pages long (original text), it’s hard to imagine Congress at the time fully comprehending and anticipating the crucial importance of NEPA over the next 55 years. However, a look at the bill’s 1969 Congressional Conference Report reveals just how cognizant they were.

In the conference report, Sen. Henry Jackson states, “Mr. President, it is my view that S. 1075 [NEPA], as passed by the Senate and now, as agreed upon by the conference committee, is the most important and far-reaching environmental and conservation measure ever enacted by the Congress.” He further elaborates that it “is a congressional declaration that we do not intend, as a government or as a people, to initiate actions which endanger the continued existence or the health of mankind: That we will not intentionally initiate actions which will do irreparable damage to the air, land and water which support life on earth.”

From an implementation standpoint, NEPA is simple. It requires all federal agencies to assess the environmental effects of their proposed actions before making decisions. It does not require that agencies choose the least damaging option—only that they consider the environmental effects of their proposed action or inaction. For The Wildlife Society, NEPA provides a crucial path to ensuring that agencies consider the best available science and likely consequences from a range of management options when making decisions that affect wildlife and natural resources.

For the first eight years of NEPA, the law had no associated regulations. That changed when then-President Jimmy Carter issued Executive Order 11991, which directed the Council on Environmental Quality (CEQ) to “issue regulations to federal agencies for the implementation of the procedural provisions of the Act.” Since the original text of NEPA was quite sparse, the 1978 regulations created by CEQ established many elements now core to the NEPA process. These include environmental assessments, required analysis of a no-action alternative and required analysis of mitigation measures. A congressional amendment embedded within the Fiscal Responsibility Act of 2023 added most of these regulatory elements to the statutory text of NEPA.

Challenging NEPA regulations

Since the 2023 NEPA amendments, multiple federal courts have found that CEQ has no rulemaking authority. In a ruling on Feb. 3, 2025, on the case Iowa et al. v. CEQ, the judge vacated a 2024 CEQ regulation and opined that “NEPA is not ambiguous. The plain text of the statute does not give CEQ authority to issue binding regulations. NEPA only authorizes CEQ to make recommendations to the president…. For 40 years, CEQ’s authority has been assumed, but these assumptions by the courts and others do not constitute binding precedent.”

While the ruling on that case only applied to vacating the 2024 CEQ regulation, it swung the door wide open to broader changes regarding the authority of CEQ to enact regulatory changes. Then, in walked President Trump. On his first day in office for his second term, President Trump issued an Executive Order titled Unleashing American Energy. Within that order, which calls for the “immediate review of all agency actions that potentially burden the development of domestic energy resources,” President Trump directs CEQ to develop new guidance for implementing NEPA and propose rescinding CEQ’s remaining NEPA regulations within 30 days.

By Feb. 19, 2025, CEQ had issued a memorandum to the heads of all federal agencies on the implementation of NEPA, and by Feb. 25, CEQ had published in the Federal Register an interim final rule to remove all CEQ regulations for implementing NEPA from the Code of Federal Regulations. Ultimately, none of these actions have any effect on the actual text of the law, which remains intact. However, both the memorandum and the interim final rule will significantly alter the implementation of one of our nation’s most significant environmental laws, potentially dawning a new era for NEPA.

According to the publication of the interim final rule, a comment period will remain open until the rule becomes effective on Mar. 27, 2025.  However, the authors of the rule emphasize that “CEQ may not possess the authority to issue rules binding upon agencies” and that the “interim final rule is a procedural and ministerial step to implement the president’s directive.” Further, they state that while they encourage public comment, they will “not undertake any reconsideration of the substance” of the rules being removed, nor are they soliciting specific comments on the content of those rules. Since CEQ is operating under the belief that they do not—nor did they ever—have rulemaking authority, the agency is refusing to “take any position on the agency’s prior interpretations of NEPA’s procedural requirements.”

What happens next?

Unless a court finds that CEQ’s interpretation of the statute is flawed, agencies moving forward will rely solely on the amended NEPA text as the primary authority when conducting environmental assessments. Without centralized and binding CEQ regulations, each agency will now be responsible for interpreting and implementing its own NEPA processes as consistent with the law, though they may still consider the nonbinding guidance issued by CEQ. This could become a challenge as agencies will not only be adjusting to a new NEPA framework but also doing so amid ongoing staff shortages and workforce restructuring. Further, without a specific agency responsible for evolving and refining the regulatory framework of NEPA, it will now remain static until Congress either authorizes rulemaking authority for CEQ or updates the law through amendments as needed.     

What about the new guidance from CEQ? The CEQ memorandum seeks to assist federal agencies in implementing NEPA by providing guidance on establishing or revising agency procedures to meet the statute’s requirements. Though nonbinding, the guidance document and the executive order upon which it is predicated contain concerning language about the future role of science in NEPA implementation. Agencies are encouraged to modify or adopt implementing procedures that take “into account the agency’s unique authorities and mission.” They are also to prioritize “efficiency and certainty over any other policy objectives” and prioritize environmental documents by the entity proposing the project. In addition, the document guides agencies to establish a minimum federal financial threshold for what constitutes major federal actions warranting NEPA review and to exclude “environmental justice analysis,” cumulative effects of proposed actions and “methodologies that are arbitrary or ideologically motivated.” Finally, the document states agencies should “adhere to only the relevant legislated requirements for environmental considerations” and “guarantee that all executive departments and agencies provide opportunity for public comment and rigorous, peer-reviewed scientific analysis.”

Counter to TWS’ Position Statement on the use of Science in Policy and Management Decisions, the new CEQ guidance and executive order place emphasis on achieving a specific action without clear consideration of the best available science, the cumulative impacts of the action, or the interdisciplinary assessments needed to gauge the impacts of an action on the quality of the human environment. Emphasis on methodologies that are not arbitrary or ideologically motivated also introduces subjective qualifications to what constitutes science that agencies can consider. This could result in agencies ignoring science that contradicts a desired outcome, especially concerning climate change, which is typically assessed at the cumulative level and often framed as being tied to political ideology. Further, the notion of establishing a minimum federal financial threshold for what constitutes a major federal action opens the door to minimally regulated, privately funded actions on public land, avoiding NEPA assessment altogether. Even the reference to public comment and rigorous, peer-reviewed scientific analysis in the same sentence raises concerns. During the first Trump Administration, TWS commented on the U.S. Fish and Wildlife Service opening up a Journal of Wildlife Management study to public comment. The expansion of the term “peer review” to potentially include general public comment opens pathways for individuals to promote alternative “hypotheses” that have no empirical or theoretical support in order to raise doubts about sound scientific information coming through the rigorous process of scientific peer review.      

So, while the text of NEPA remains intact, the stated direction of the Trump Administration and the explicit guidance of CEQ indicate a desire to curtail and qualify science used in environmental assessments, thus raising the question of whether implementation of NEPA in the future will continue to meet Congress’ original intent to “not intentionally initiate actions which will do irreparable damage to the air, land, and water.” Only time will tell the true effect of these proposed changes and their impact on the legacy of NEPA. In the meantime, these actions are the initial steps of a developing and troubling trend regarding deregulation of the federal government as signaled in the Feb. 19, 2025 executive order titled Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative.