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Article in E&E news. Easier to read version in attached PDF, if it is a valid attachment…
Lot of lawyers gonna make bank.
Trump moves to claw back almost 50 years of
NEPA regs
By Hannah Northey
02/18/2025 01:57 PM EST
The Trump administration is moving to pull back almost five decades' of rules crafted and imposed under the National Environmental Policy Act, a foundational statute widely known as the “magna carta” of environmental laws.
The White House signaled on Saturday it plans to issue an interim final rule
to rescind all regulations that the Council on Environmental Quality has issued to implement the law since 1977, when President Jimmy Carter signed an order directing the agency to issue rules under NEPA.
While the rule, dubbed “Removal of National Environmental Policy Act Implementing Regulations,” has not yet been released, it’s already fueling questions and anxiety in the legal and environmental world around whether the administration will ultimately gut protections and public process as Trump officials conduct reviews.
“NEPA is an environmental magna carta, it is a foundational law and changes that are made to it are potentially very significant, and so it is a very worrisome exercise that they are going about it with an interim final rulemaking,” said Ted Boling, a longtime CEQ official and now partner at the firm Perkins Coie. “It does raise the question of ‘what else are you going to do .. that could have long-term impacts?’”
The administration's notice on Saturday falls in line with President Donald Trump signed in January,
“Unleashing American Energy,” which calls on CEQ to “propose rescinding” decades’ worth of regulations issued under NEPA and instead issue nonbinding guidance for agencies to follow as they review everything from roads and buildings to mines and energy projects.
In doing so, Trump revoked a decades-old executive order giving CEQ authority to craft rules for how agencies comply with NEPA. Trump's moves followed a surprise finding late last year by the U.S. Court of Appeals for the District of Columbia Circuit that CEQ has no authority to write regulations. Boling said he’s not sure why the administration opted to issue an interim final rule and cut out public comment — a move that some legal experts say is illegal — but that he’s taking a wait-and-see approach and plans to carefully review the administration’s reasoning and the guidance that CEQ ultimately releases. “I’m not going to presume the sky is falling,” he added. “I need to see what they propose, what the guidance says; there's hard work ahead.”
‘A field day in court’
The Trump administration’s move to issue a final interim rule will likely trigger legal challenges focused on the decision to cut out public notice and comment. Pat Parenteau, emeritus professor at the Vermont Law and Graduate School, said in an email that the move is illegal because the Administrative Procedure Act requires public notice and opportunity for comment to repeal a rule unless there is "good cause," which the D.C. Circuit defines as necessary to protect public safety or for other "exigencies." “Neither of which is present in the case of the CEQ rules,” said Parenteau.
Boling said that pursuing an interim final rule is allowed under APA, but he agreed the administration will have to articulate its reasoning for why there’s a “good cause” to take such a route.
“I will be interested in … their reasoning. Why did they have to make this proposal immediately effective … [when] the executive order only directed CEQ to ‘propose to rescind,’” said Boling. “Why are they going this aggressive route of actually rescinding and asking for comment on it?”
Parenteau said the move is also “cynical” and “stupid” given that a federal judge in North Dakota in February rejected CEQ’s authority to regulate how agencies craft environmental reviews of major federal projects. The U.S. District Court for the District of North Dakota struck down the 2024 CEQ rule for how agencies should comply with NEPA. “So no need to rush anything,” he said.
Parenteau also warned the Trump administration’s move “throws the NEPA process into chaos and leaves it to individual agencies to comply,” in addition to fueling likely legal challenges.
“Every federal agency has NEPA rules on the books which must be followed unless and until they are changed through normal rulemaking process,” said Parenteau. “Environmental groups will have a field day in court blocking actions that do not comply, and there is a huge body of favorable NEPA case law that does not depend on the CEQ rules.” ‘Of course there's disruption’
Other legal experts say the move isn’t surprising given that questions about CEQ’s authority to issue regulations have long loomed over the agency. “I’m not alarmed,” said James Coleman, a law professor at the University of Minnesota. “This is more bringing the CEQ practice in line with the current Supreme Court thinking about when agencies have the authority to issue regulations.”
Coleman said he’s also waiting to see the text of the CEQ guidance and noted that agencies have their own NEPA regulations. The courts, he said, will eventually have to decide whether they’re going to follow past precedent, which has fueled a lengthy NEPA process, or will take a fresh look at the underlying law.
“It offers a degree of freedom for judges who want to do so to basically reconsider some of the precedents that have got us to the position where environmental reviews and permitting take so long,” said Coleman.
There’s also a bipartisan recognition that there’s a need for a more efficient regulatory review process, including for projects that are benefiting from the Inflation Reduction Act. “Of course there's disruption when you're changing the rules, but I think there is a bipartisan recognition that changes are necessary,” he added.
Thomas, director of infrastructure policy at the Foundation for American Innovation, said the changes Trump is making would not affect the underlying statute of NEPA, which is a procedural law and not a substantive law that offers environmental protections like the Clean Air Act or Clean Water Act. CEQ, he added, will still have an important role to play.
“So CEQ’s regulatory authority will be gone, but CEQ will still have a very important advisory role to play, sort of helping all the agencies develop their new NEPA regulations,” said Hochman
Lot of lawyers gonna make bank.
Trump moves to claw back almost 50 years of
NEPA regs
By Hannah Northey
02/18/2025 01:57 PM EST
The Trump administration is moving to pull back almost five decades' of rules crafted and imposed under the National Environmental Policy Act, a foundational statute widely known as the “magna carta” of environmental laws.
The White House signaled on Saturday it plans to issue an interim final rule
to rescind all regulations that the Council on Environmental Quality has issued to implement the law since 1977, when President Jimmy Carter signed an order directing the agency to issue rules under NEPA.
While the rule, dubbed “Removal of National Environmental Policy Act Implementing Regulations,” has not yet been released, it’s already fueling questions and anxiety in the legal and environmental world around whether the administration will ultimately gut protections and public process as Trump officials conduct reviews.
“NEPA is an environmental magna carta, it is a foundational law and changes that are made to it are potentially very significant, and so it is a very worrisome exercise that they are going about it with an interim final rulemaking,” said Ted Boling, a longtime CEQ official and now partner at the firm Perkins Coie. “It does raise the question of ‘what else are you going to do .. that could have long-term impacts?’”
The administration's notice on Saturday falls in line with President Donald Trump signed in January,
“Unleashing American Energy,” which calls on CEQ to “propose rescinding” decades’ worth of regulations issued under NEPA and instead issue nonbinding guidance for agencies to follow as they review everything from roads and buildings to mines and energy projects.
In doing so, Trump revoked a decades-old executive order giving CEQ authority to craft rules for how agencies comply with NEPA. Trump's moves followed a surprise finding late last year by the U.S. Court of Appeals for the District of Columbia Circuit that CEQ has no authority to write regulations. Boling said he’s not sure why the administration opted to issue an interim final rule and cut out public comment — a move that some legal experts say is illegal — but that he’s taking a wait-and-see approach and plans to carefully review the administration’s reasoning and the guidance that CEQ ultimately releases. “I’m not going to presume the sky is falling,” he added. “I need to see what they propose, what the guidance says; there's hard work ahead.”
‘A field day in court’
The Trump administration’s move to issue a final interim rule will likely trigger legal challenges focused on the decision to cut out public notice and comment. Pat Parenteau, emeritus professor at the Vermont Law and Graduate School, said in an email that the move is illegal because the Administrative Procedure Act requires public notice and opportunity for comment to repeal a rule unless there is "good cause," which the D.C. Circuit defines as necessary to protect public safety or for other "exigencies." “Neither of which is present in the case of the CEQ rules,” said Parenteau.
Boling said that pursuing an interim final rule is allowed under APA, but he agreed the administration will have to articulate its reasoning for why there’s a “good cause” to take such a route.
“I will be interested in … their reasoning. Why did they have to make this proposal immediately effective … [when] the executive order only directed CEQ to ‘propose to rescind,’” said Boling. “Why are they going this aggressive route of actually rescinding and asking for comment on it?”
Parenteau said the move is also “cynical” and “stupid” given that a federal judge in North Dakota in February rejected CEQ’s authority to regulate how agencies craft environmental reviews of major federal projects. The U.S. District Court for the District of North Dakota struck down the 2024 CEQ rule for how agencies should comply with NEPA. “So no need to rush anything,” he said.
Parenteau also warned the Trump administration’s move “throws the NEPA process into chaos and leaves it to individual agencies to comply,” in addition to fueling likely legal challenges.
“Every federal agency has NEPA rules on the books which must be followed unless and until they are changed through normal rulemaking process,” said Parenteau. “Environmental groups will have a field day in court blocking actions that do not comply, and there is a huge body of favorable NEPA case law that does not depend on the CEQ rules.” ‘Of course there's disruption’
Other legal experts say the move isn’t surprising given that questions about CEQ’s authority to issue regulations have long loomed over the agency. “I’m not alarmed,” said James Coleman, a law professor at the University of Minnesota. “This is more bringing the CEQ practice in line with the current Supreme Court thinking about when agencies have the authority to issue regulations.”
Coleman said he’s also waiting to see the text of the CEQ guidance and noted that agencies have their own NEPA regulations. The courts, he said, will eventually have to decide whether they’re going to follow past precedent, which has fueled a lengthy NEPA process, or will take a fresh look at the underlying law.
“It offers a degree of freedom for judges who want to do so to basically reconsider some of the precedents that have got us to the position where environmental reviews and permitting take so long,” said Coleman.
There’s also a bipartisan recognition that there’s a need for a more efficient regulatory review process, including for projects that are benefiting from the Inflation Reduction Act. “Of course there's disruption when you're changing the rules, but I think there is a bipartisan recognition that changes are necessary,” he added.
Thomas, director of infrastructure policy at the Foundation for American Innovation, said the changes Trump is making would not affect the underlying statute of NEPA, which is a procedural law and not a substantive law that offers environmental protections like the Clean Air Act or Clean Water Act. CEQ, he added, will still have an important role to play.
“So CEQ’s regulatory authority will be gone, but CEQ will still have a very important advisory role to play, sort of helping all the agencies develop their new NEPA regulations,” said Hochman
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