The Trump White House scrapped decades worth of rules Thursday for how to conduct reviews under the National Environmental Policy Act.
In its place, the administration offered up voluntary guidance that some worry could cut out public comment and sow confusion as agencies — tasked with overseeing everything from bridges to battery plants — chart their own paths.
At issue is NEPA, a law that requires the federal government to consider environmental consequences before approving infrastructure. For decades, the Council on Environmental Quality has crafted rules specifying how agencies should conduct reviews that comply with the statute.
But the Trump administration on Thursday, empowered by a recent court decision, unveiled an interim final rule that rescinds almost 50 years worth of CEQ regulations. In doing so, the agency was complying with President Donald Trump’s “Unleashing American Energy” executive order, which revoked a 1977 order that authorized CEQ to make rules in the first place.
At the same time, CEQ chief of staff Katherine Scarlett in a memo laid out voluntary guidance for hundreds of agencies to follow their existing practices and procedures. Overall, the memo shifts responsibility from CEQ’s overarching rules to agencies’ individual procedures, which must be updated throughout the coming year.
While the guidance includes “commonsense talking points” and sets up a working group to advise agencies, Ted Boling, a longtime CEQ official who is now partner at the firm Perkins Coie, said it lacks detail. It also leaves open big questions about what actions are significant enough to be reviewed and when — or if — interagency and public reviews will occur, Boling said.
“You could have broad or very different approaches to NEPA implementation, even disagreements between agencies as to what’s a significant effect,” Boling said, adding that the now-repealed CEQ order included a carefully coordinated approach for agencies to follow.
“Now, it appears that basic architecture is open to interpretation,” he continued. “We’ll see over the course of the next year how this plays out.”
Environmental groups blasted the White House action and warned that eliminating rules that have been in place for decades will only fuel chaos and gridlock. They also criticized the guidance for suggesting agencies do away with considering environmental justice and cumulative impacts.
“Eliminating all the NEPA rules will ‘unleash’ oil and gas development under the guise of a fake energy emergency,” Abigail Dillen, president of Earthjustice, said in a statement. “Much more sweepingly, it endangers the essentials that only our government can reliably protect, including clean air and water.”
But Thomas Hochman, director of infrastructure policy at the Foundation for American Innovation who has repeatedly called for NEPA reforms, said the guidance is a “pretty basic skeleton” that mostly directs agencies to continue following their regulations until they issue new rules and, as expected, establishes a working group.
James Coleman, a law professor at the University of Minnesota, acknowledged there could be disagreements among agencies going forward but said such disputes are already playing out under the current framework — and that he expects lawsuits targeting NEPA reviews to continue.
“It’s not obvious to me why this makes it worse,” said Coleman.
‘Herculean’ effort
The White House has repeatedly said it wants to accelerate construction of projects such as pipelines, power plants, bridges and highways across the nation that have been hampered by lengthy environmental reviews.
But Boling said the pace of that work could be hampered if agencies aren’t on the same page.
“I’m concerned that we’ll have at least a year of uncertainty and delay on major infrastructure projects while agencies update their NEPA procedures to align with the very general CEQ guidance,” said Boling. “Telling agencies that they can voluntarily rely on regulations that CEQ has repealed does not address this concern.”
The Trump administration, he said, faces a “Herculean” effort in coordinating agencies that may have differing views on what constitutes a significant action and therefore requires a closer look or interagency reviews, as well as which agencies and communities should be included as those reviews move forward.
Detailed guidance, he noted, is spelled out in now-defunct CEQ rules but not the underlying language of NEPA.
The new White House guidance, he said, also raises questions about the public’s ability to weigh in.
The document states that agencies should allow public comment on proposed NEPA regulations that last at least 30 days — but “no longer than 60 days” — “to the extent that public comment is required.” The guidance adds that, “to the extent that public comment is not so required, agencies should not undertake public comment procedures.”
Boling said that’s worrisome because it raises, but doesn’t answer, whether public or interagency reviews will occur.
“I don’t know to what extent public comment would not be required,” he said. “And CEQ apparently is not in a position to require anything of agencies at this point because their rulemaking authority, their regulatory authority over agencies, has been rescinded.”
The White House is also making it optional for agencies to consider environmental justice and “cumulative impacts,” something that environmental justice groups have long sought to address disproportionate impacts on disadvantaged communities.
Others say the White House’s swift action paves the way for broader reforms.
Hochman and his colleagues in a recent essay applauded Trump’s executive order for creating an opportunity for CEQ and federal agencies to more narrowly interpret NEPA and speed reviews.
Specifically, they have called on the agencies to narrow what actions trigger NEPA in the first place, expand the set of actions that can be excluded and which one require an environmental impact statement.
Like that essay, the White House guidance calls on agencies to meet deadlines established in the Fiscal Responsibility Act of 2023, which requires environmental assessments to be finished within a year and environmental impact statements within two years.
Yet Coleman with the University of Minnesota said there’s an “open question” about just how enforceable those timelines are, noting that agencies do have the ability to ask for extensions.
“What’s a court going to do, say ‘give me an EIS tomorrow,’” he asked. “I think there’s an open question about how effective that will be, given that there’s not really much of an enforcement mechanism for making sure that happens, other than the administration basically demanding it of the agencies.”
