The White House’s Office of Information and Regulatory Affairs is now reviewing the Council on Environmental Quality’s repeal of its National Environmental Policy Act implementing regulations. This action marks a significant step toward scaling back the federal environmental review process that has exacerbated delays and increased litigation risks for critical energy and infrastructure projects. Once the White House completes its review, the rule will be published in the Federal Register, signaling the start of a new chapter in NEPA’s implementation.
This move follows President Donald Trump’s “Unleashing American Energy” executive order, which revoked the 1977 order that originally authorized the CEQ’s NEPA regulations. The administration directed CEQ to repeal these regulations and replace them with streamlined guidance. Importantly, CEQ’s repeal does not eliminate all NEPA-related regulations. Instead, a working group is being established to assist federal agencies in revising their own NEPA rules. Agencies will remain responsible for conducting environmental reviews — and NEPA remains the law of the land — but enforceability will shift from CEQ’s overarching rules to these agency-specific regulations.
Additionally worth noting is that this repeal is being carried out via an interim final rule, meaning that while it takes effect immediately after publication, CEQ will accept public comments and may make modifications based on feedback. This approach leaves the door open for further refinements to the NEPA governing framework.
Why This Repeal Matters
The CEQ regulations have been widely criticized for imposing unnecessary requirements that slow down environmental reviews and make projects more vulnerable to litigation. Under the current framework, agencies must prepare extensive Environmental Impact Statements for projects deemed to have a “reasonably foreseeable significant effect on the quality of the human environment.” The current regulations require agencies to consider direct, indirect, and cumulative impacts of a project. “Effects” are considered expansively to be ecological, aesthetic, historic, cultural, economic, social, or health related. Additionally, agencies must consider a broad range of alternatives, including sometimes those outside their statutory authority.
CEQ’s broad interpretation of NEPA has led to years-long delays for infrastructure projects, prompting legal challenges over the appropriate scope of environmental analysis. The Seven County Infrastructure Coalition v. Eagle County case currently before the Supreme Court is about this uncertainty surrounding NEPA’s requirements. The justices expressed skepticism during oral arguments of both highly expansive and severely restricted interpretations of NEPA’s scope, suggesting that there is a meaningful, though perhaps limited, opportunity for the Trump administration to scale back NEPA’s reach.
What The Trump Administration Should Do Next
Even with CEQ’s repeal, individual agencies must update their own NEPA procedures. As a first step, agencies should consider whether they can follow CEQ’s approach by repealing their own NEPA implementing regulations and replacing them with non-enforceable guidance. The rationale is straightforward: since the administration has eliminated the CEQ regulations, and agency regulations were based on them, agencies should now align their procedures with the new CEQ framework. While the underlying NEPA statute would remain legally enforceable in court, this shift would make the new agency NEPA guidelines non-enforceable.
Once agencies make this determination, the administration has further options for streamlining agency procedures. First, it can define “major federal action.” NEPA applies to major federal actions, but this term has been loosely interpreted to include virtually any project involving federal oversight. A reasonable threshold — such as a $100 million project — could make the NEPA definition consistent with other definitions of “major” used by the federal government, while also exempting many small-scale projects from review.
The administration can also set objective criteria for “significant” environmental effects. The prior CEQ rules relied on broad and indeterminate definitions of significance. Instead, agencies could define significance based on measurable criteria like acres of land disturbed or emission levels.
Likewise, the Trump administration can clarify what “reasonably foreseeable” effects are. Environmental reviews often get bogged down by speculative assessments of long-term indirect impacts. Setting clear time limits — such as requiring effects to manifest within a decade — could reduce the uncertainty in analysis significantly.
Next, expand categorical exclusions. The vast majority of NEPA reviews result in a Finding of No Significant Impact. If smaller projects are unlikely to cause harm, why not find a way to exclude them from NEPA review altogether? Expanding categorical exclusions would allow low-risk projects to bypass NEPA’s unnecessary analysis requirements.
Finally, the administration can define the scope of analysis. Congress has left much of NEPA’s implementation open-ended, meaning that agencies and courts must determine the appropriate level of scrutiny. How many alternatives should agencies consider? Should they consider factors outside their expertise or jurisdiction? Should they consider indirect effects as well as direct ones? These questions remain unresolved. The Supreme Court’s pending decision in Seven County could provide some clarity, but the Trump administration has an opportunity to do so as well.
The Role Of Congress
Ultimately, the best long-term solution would be for Congress to amend NEPA itself. While a full repeal is unlikely, Congress could codify clearer standards for which decisions are subject to environmental reviews, establish uniform procedures, and define the extent of judicial review, including placing limits on judicial injunctions. Legislators could also clarify standing requirements to limit frivolous lawsuits that delay projects.
Until then, agencies should aim to make the NEPA process as light-touch as possible within existing legal constraints. The courts will likely test the limits of these reforms, but that is true of any changes made by Congress as well. The best approach is to push for the lightest regulatory burden possible and adjust as necessary based on legal challenges.
With CEQ’s repeal process now fully in motion, the Trump administration faces a critical moment in environmental policy. The coming months will determine just how far this deregulatory push can go.
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