Council on Environmental Quality Withdraws NEPA Regulations and Issues Interim Guidance to Agencies

Following a directive from President Trump,^[1] and in the wake of two court decisions concluding the Council on Environmental Quality (“CEQ”) had no authority to promulgate them in the first place, CEQ’s National Environmental Policy Act (“NEPA”) regulations are being removed from the Code of Federal Regulations.

In 1969, Congress enacted NEPA to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment[;] … and to establish a Council on Environmental Quality.”^[2] Since then, CEQ has been issuing guidance and promulgating regulations to aid agencies in complying with the law.

But on February 19, 2025, CEQ issued an interim final rule rescinding all its implementing regulations.^[3] CEQ’s action complies with President Trump’s Executive Order 14154 ordering this withdrawal, rescinding two previous and longstanding executive orders which directed the promulgation of NEPA regulations, and directing revisions to individual federal agencies’ own NEPA regulations.^[4] CEQ’s rule not only rescinds its regulations, but also acknowledges that, consistent with two adverse federal court decisions,^[5] CEQ “may lack authority to issue binding rules on agencies.” CEQ is accepting comments on this interim rule for 30 days from publication in the Federal Register. However, the rule will be finalized only 15 days after the comment period closes.

Concurrently, CEQ issued guidance regarding how agencies should proceed in complying with NEPA in the interim.^[6] Its February 19, 2025, memorandum directs agencies to revise (or promulgate) their own NEPA implementing regulations within 12 months, but to continue following existing regulations and guidance while revisions are ongoing:

“While these revisions are ongoing, agencies should continue to follow their existing practices and procedures for implementing NEPA consistent with the text of NEPA, E.O. 14154, and this guidance. Agencies should not delay pending or ongoing NEPA analyses while undertaking these revisions. For such analyses, until revisions are completed via the appropriate rulemaking process, agencies should apply their current NEPA implementing procedures with any adjustments needed to be consistent with the NEPA statute as revised by the [Fiscal Responsibility Act of 2023]. Moreover, although CEQ is rescinding its NEPA implementing regulations at 40 C.F.R. parts 1500–1508, agencies should consider voluntarily relying on those regulations in completing ongoing NEPA reviews or defending against challenges to reviews completed while those regulations were in effect. CEQ will provide ongoing assistance through monthly meetings of the Federal Agency NEPA Contacts and the NEPA Implementation Working Group required by section 5(c) of E.O. 14154. CEQ encourages agencies to use the 2020 rule “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act” as an initial framework for the development of revisions to their NEPA implementing procedures, consistent with this guidance, E.O. 14154, and to the extent permitted by applicable law.”^[7]

The memorandum also provides considerations for agencies in promulgating their own NEPA regulations, such as (1) the use of project sponsor-prepared documentation; (2) how to approach identifying and evaluating a reasonable range of alternatives; (3) the distinction between “reasonably foreseeable” effects of an action (which appears in the text of NEPA) and “cumulative effects” (which does not); and (4) whether to establish a threshold for agency actions involving no or minimal federal funding or other financial assistance below which an action does not quality as “major.” And, consistent with President Trump’s revocation of executive orders involving environmental justice, “NEPA documents should not include an environmental justice analysis, to the extent that this approach is consistent with other applicable law.”  

Finally, CEQ’s guidance follows two other executive orders impacting agencies’ authority. On February 18, 2025, President Trump issued an executive order prohibiting agencies from interpreting statutes in any way that “contravenes” the President or Department of Justice’s interpretation.^[8] A second order on February 19, 2025, requires all new regulations to be evaluated against a new list of criteria, including whether the regulations are “based on anything other than the best reading of the underlying statutory authority or prohibition.”^[9] It remains to be seen how federal agencies will harmonize this order with the directive to promulgate their own NEPA regulations.

Crowell & Moring continues to monitor NEPA updates at the White House, CEQ, federal agencies, and the courts.