The current administration’s reluctance to permit protracted or invasive NEPA review is consistent with its earlier actions.
The White House Council on Environmental Quality (CEQ) on April 22 informed federal agencies that they may retain their binding National Environmental Policy Act (NEPA) procedures while updating those procedures to conform to a draft NEPA template issued by CEQ on April 8 that makes dramatic changes to agency review and decision-making under the law.
The April 22 announcement reverses a directive that CEQ had issued during a phone call earlier in the month ordering agencies to drop their binding NEPA rules and replace them with nonbinding guidance. The shift back to tolerating binding agency-level NEPA rules may have been driven by litigation fears.
Nearly lost in the back-and-forth over whether agency-level NEPA rules will be binding or nonbinding going forward was the April 8 draft NEPA template, which makes dramatic changes to how CEQ wants to see the law implemented.
Significant Provisions of the CEQ Template
The template suggests agencies preparing an environmental impact statement (EIS) shall “obtain the comments of [] any federal agency that has jurisdiction by law,” as well as the “appropriate State, Tribal, and local agencies,” but it gives the preparing agency the option of whether to request comments from the public, except with respect to certain early stage scoping issues. This is a stark change from past practice, wherein agencies were generally required to solicit public comment at multiple points in the NEPA process: (1) during the scoping phase, (2) during a 45-day public comment period after publication of a draft EIS and (3) during a 30-day period between publication of a final EIS and issuance of a record of decision.
CEQ emphasizes that if the agency engages the public, the agency must ensure that the process will not interfere with the “congressionally mandated [two-year] deadline for completion of an [EIS].” The two-year deadline was established by the Fiscal Responsibility Act of 2023, but gives agencies leeway to extend that deadline in certain circumstances. The new CEQ template creates uncertainty as to whether any such leeway will exist if an agency decides to include the public in the EIS process.
The template suggests that agencies consider setting a “presumptive (but nonbinding) monetary threshold” below which no NEPA review would be required. It states, “This threshold can be calculated to the extent an agency can substantiate it: (1) by project costs, and/or (2) by overall economic impact.” No such monetary threshold currently exists by law; rather, agencies must comply with NEPA for any “major federal action” that may significantly affect the quality of the human environment.
Potential Impact
The current administration’s reluctance to permit protracted or invasive NEPA review is consistent with its earlier actions. In February, the administration issued Executive Order 14154, which directed agencies to revise their NEPA implementing procedures to expedite permitting in accordance with forthcoming guidance from CEQ. At the same time, CEQ revoked its own binding NEPA regulations in February, though it took public comment and delayed implementation until April 11. These moves follow on the heels of a November 2024 ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in Marin Audubon v. Federal Aviation Administration that the CEQ lacked statutory authority to issue binding regulations, which have been in place since 1978.
The new guidance in the April 8 draft template would likely have the effect of reducing regulatory burden and timelines for projects subject to NEPA in alignment with the current administration’s policy priorities. In the latest manifestation of those priorities, the Department of Interior announced on April 23 that it will offer significantly shortened NEPA review timelines for fossil fuel, mineral, geothermal, biofuel and hydropower projects (but not solar or wind projects) on public lands, including a 14-day deadline for completion of an environmental assessment and a 28-day deadline for preparation of an EIS. It is unclear how many project applicants will choose the shortened timelines given uncertainty over their legality and concerns over litigation risk.
Agencies and other stakeholders may be experiencing whiplash over CEQ’s changing directives on agency-level rules, which have created significant confusion about how agencies must comply with NEPA and move projects along in the statutory two-year pipeline. For now, applicants with projects that have not entered the NEPA process may be best served waiting until relevant agencies have updated their NEPA guidance and clarified what level of review will be applied to major federal actions.
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