For the first time in decades, the White House will no longer have National Environmental Policy Act rules. But it will take some time to see changes in how the bedrock environmental law is applied, legal experts say.
Project developers are grappling with the potential consequences of President Donald Trump scrapping the White House Council on Environmental Quality’s NEPA regulations — rules that since 1977 have told federal agencies how to analyze the effects of building pipelines, transmission lines, highways and wind farms.
The Trump administration’s rescission of CEQ’s rulemaking power — bolstered by recent court decisions against the agency’s regulatory authority — “adds another layer of uncertainty onto the permitting process generally,” said M. Benjamin Cowan, a partner at the law firm Troutman Pepper Locke, which represents clients in the renewable energy sector.
“We’re working with clients to try to strategically navigate the uncertainty,” he said.
The NEPA changes are underway as the so-called Department of Government Efficiency eliminates agency staff responsible for conducting environmental reviews and as federal permits stall, particularly for renewable energy projects.
Critics of the current NEPA process say reviews are too lengthy, delaying completion of necessary infrastructure and increasing price tags for developers.
The Trump administration is not alone in considering changes to NEPA. The Supreme Court is poised to issue a ruling in the first half of this year that could limit analysis of environmental effects that are not directly linked to construction and operation of a project.
Some experts predict that the practical effects of the changes will be limited in the near term.
Walking back CEQ’s regulatory power will create a “little more play in the joints” of how agencies implement NEPA, said Ellie Dawson, a partner at the law firm Crowell & Moring and a former Justice Department trial attorney during the Obama administration.
“The statute is still the statute,” she said. “It has always been the touchstone for compliance, and ultimately, NEPA documents will still be evaluated against that standard.”
Congress and the courts are also likely to limit the effects of the Trump administration’s revocation of CEQ’s rules, said James Auslander, a principal at the law firm Beveridge & Diamond.
Lawmakers recently passed NEPA reform as part of the 2023 BUILDER Act, and the Trump administration will still have to contend with decades of case law.
“A lot of interpretation of NEPA has come from courts as much as it’s come from CEQ or individual agencies,” Auslander said, “and courts will remain the ultimate arbiter of NEPA compliance where it’s disputed.”
1. What will NEPA review look like for pending projects?
In the short term, developers shouldn’t expect major changes to the NEPA process.
When CEQ revoked the NEPA rules, it also released a memo directing agencies to continue to voluntarily follow the rescinded regulations in ongoing environmental reviews until revisions are complete.
Even if the rules are no longer binding, they did not “disappear from the ether,” Auslander said.
And agencies that already have their own NEPA implementing rules will continue to follow them, said Crowell’s Dawson.
“To the extent a company is working with an agency that has regulations on books, they would still be operative until a court says otherwise,” she said.
Not all agencies will change their NEPA procedures, and some may pass new regulations or provide informal guidance in response to the Trump administration’s rescission of the CEQ rule, Auslander said.
“All of these options are on the table,” he said.
Cowan of Troutman said his firm is also looking to advance projects in ways that do not require federal permitting, including NEPA analysis, particularly for projects that are either in their very early stages or close to completion.
“Depending on the nature of the impacts, there are ways to redesign projects, or project construction, to avoid impacts,” he said.
For a wind farm or a solar project, for example, that might mean rerouting roads or collection lines to avoid Clean Water Act permit requirements for discharge into federal waters, Cowan said.
“There’s costs associated with doing that,” he said, “but in many cases, it may be preferable to subjecting yourself to a permitting process that may not even be available to the industry right now.”
2. Will Trump’s CEQ rule repeal hold up in court?
The Trump administration may have a legal advantage in defending its about-face on CEQ’s NEPA rules.
Last year, the U.S. Court of Appeals for the District of Columbia Circuit ruled in a split decision that CEQ lacked rulemaking authority. The D.C. Circuit recently declined to reconsider the decision, though the court indicated it might not treat the ruling as binding precedent.
Then in February, the U.S. District Court for the District of North Dakota ruled that Congress had not given CEQ the power to issue regulations and struck down a Biden-era NEPA rule that had restored provisions gutted by Trump during his first administration.
“The courts have said that CEQ did not have the authority from Congress to implement these rules that are binding on other agencies,” Cowan said. “And so the Trump administration is withdrawing those rules.”
Environmental groups and other opponents of Trump’s NEPA rule rescission could argue in court that the administration misused the “good cause” exemption under the Administrative Procedure Act, which allows agencies to skip the normal notice-and-comment process in emergencies and other circumstances.
But groups may think twice about bringing those claims in light of the decisions from the D.C. Circuit and North Dakota District Court, said Cowan of Troutman.
Those rulings “provide the legal cover for what the Trump administration is doing with NEPA,” said Cowan.
Still, the Supreme Court’s recent decision striking down Chevron deference could prove to be a problem for the Trump administration, as could other precedent from the high court requiring agencies to justify rule repeals, said Pat Parenteau, emeritus professor at Vermont Law and Graduate School.
In 2024, the justices ruled in Loper Bright v. Raimondo that courts should no longer defer to agencies’ reasonable interpretations of ambiguous laws. And the Supreme Court’s 1983 decision in Motor Vehicle Manufacturers Association v. State Farm required agencies to provide justification for repealing a rule.
In the case of CEQ’s NEPA regulations, Parenteau said, there are decades of administrative implementation, as well as hundreds of judicial decisions enforcing the agency’s rules. He added that Congress had declined to repeal or revise CEQ’s rules in the 2023 BUILDER Act.
Trump’s rescission “makes a feeble argument that the repeal of the rule is just a ‘procedural’ change with no substantive effect,” Parenteau said in an email. “No self respecting judge would buy that ‘pretextual’ argument.”
3. How could the courts change NEPA?
An upcoming Supreme Court ruling could add another wrinkle to the Trump administration’s transformation of NEPA.
Seven County Infrastructure Coalition v. Eagle County asks the justices to decide whether agencies must consider environmental effects that are far removed from a project and that the agency does not have direct power to regulate.
The justices heard oral arguments in the case last December and are expected to hand down a ruling by early summer.
While the Trump administration had notified the Supreme Court of its CEQ rule repeal, Crowell’s Dawson was skeptical that the justices would address the agency’s rulemaking authority and would instead stick to the narrower question of NEPA’s scope.
Dawson added that the Supreme Court’s ruling could help agencies as they revise or write new regulations to comply with the Trump administration’s CEQ guidance.
“Given how much is in flux, the court might consider it more prudent to limit its opinion to the question it granted,” she said.
Auslander declined to predict how the Supreme Court might rule in the NEPA case.
But, he added, “whatever the court does there will inform how agencies and project proponents approach their NEPA reviews going forward.”
This story also appears in Climatewire.
