Publication
CEQ Rescinds NEPA Regulations and Issues Guidance to “Expedite and Simplify the Permitting Process”
The Council on Environmental Quality (CEQ) recently submitted an interim final rule rescinding its National Environmental Policy Act (NEPA) regulations. Additionally, the CEQ issued a memorandum providing guidance to assist agencies in implementing NEPA to “expedite and simplify the permitting process.”1
Background
Generally, NEPA requires federal agencies to consider any significant environmental impacts of any major decisions.2 There are three levels of NEPA compliance review: (1) categorical exclusions, (2) environmental assessments, and (3) environmental impact statements. Categorical exclusions do not require an environmental assessment or environmental impact statement. If a federal action does not fall under a categorical exclusion, then an environmental assessment must be prepared. Based on an environmental assessment, an agency will determine whether an agency action “has a reasonably foreseeable significant effect on the quality of the human environment.”3 If an agency action will significantly affect the environment, then an environmental impact statement must be prepared.
Executive Order
On January 20, 2025, President Trump enacted an Executive Order titled, “Unleashing American Energy,” requiring agencies to revise their NEPA-implementing regulations to “expedite and simplify the permitting process.” Further, the Executive Order directed the CEQ to issue guidance to assist agencies in accomplishing its objectives.
CEQ Regulation Recission and Guidance
On February 19, 2025, the CEQ submitted an interim final rule rescinding its NEPA regulations. Additionally, the CEQ issued a memorandum providing guidance to agencies in implementing NEPA. The memorandum directs agencies to consider the following considerations as they relate to revising NEPA procedures:
- Project Sponsor Preparation: Project sponsor-prepared environmental assessments and environmental impact statements should be prioritized for expeditious review, and review procedures should be “transparent, clear, and predictable.”
- Deadlines established by Congress: NEPA implementing procedures must comply with NEPA deadlines.
- Reasonable Range of Alternatives: When developing an environmental impact statement, agencies should “only consider a reasonable range of alternatives to the proposed action that are technically and economically feasible and that meet the purpose and need for the proposed action,” and analyze “any adverse environmental effects of not implementing the proposed action in the case of a no action alternative to the extent that a no action alternative is feasible.”
- Effects: Agencies should analyze only the “reasonably foreseeable” effects of the proposed action, regardless of whether those effects might be characterized as “cumulative.”
- Federal Funding: A proposed action is not a “major Federal action” subject to NEPA if it proposes “no or minimal Federal funding” or “loans, loan guarantees, or other forms of financial assistance where a Federal agency does not exercise sufficient control and responsibility over the subsequent use of such financial assistance or the effect of the action.”
- Environmental Justice Considerations: Environmental assessments and environmental impact statements should not include an environmental justice analysis.
Additionally, the CEQ’s guidance places a premium on consistency and predictability. To that end, implementing procedures should, among other things, clearly “delineate the sequence of major decision points for the agency’s programs and actions subject to NEPA”; identify “activities or decisions that are not subject to NEPA”; establish a procedure for reevaluation and supplementation of environmental assessments; explain how “interested persons can get information or status reports” on the NEPA process; include “procedures for concluding or terminating (where appropriate) the NEPA process”; include “processes for consideration of emergency actions”; include “procedures to guide project sponsors’ preparation” NEPA documents; and include “specific criteria for providing limited exceptions to public availability for classified proposals.”
Next Steps
Agencies must complete their NEPA revisions within twelve months after the date of the memorandum. These revisions will be open to public comment. In the meantime, agencies will continue to follow their existing NEPA procedures, and agencies should not delay the processing of pending NEPA analyses. Although the CEQ rescinded its NEPA implementing regulations, agencies may voluntarily rely on those regulations for completing pending NEPA analyses. Project sponsors should follow along as agencies begin to revise their procedures.
Snell & Wilmer’s special litigation and compliance team is monitoring ongoing developments and is experienced in counseling project sponsors about the NEPA process. Additionally, Snell & Wilmer’s special litigation and compliance team is well versed in the notice and comment process and is skilled in assisting clients navigate it to help ensure their rights are not only heard, but also positioned in case further legal action must be taken. Project sponsors should not sit out the notice and comment process if they believe their interests will not be addressed adequately.
Footnotes
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Council on Environmental Quality, Memorandum for Heads of Federal Departments and Agencies re Implementation of the National Environmental Policy Act (Feb. 19, 2025), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-Memo-Implementation-of-NEPA-02.19.2025.pdf.
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42 U.S.C. §4321 et seq.
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42 U.S.C. §4326(b)(1).
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