NEPA: New Executive Order and Court Rulings Create Major Uncertainties for Compliance and Litigation

There is more uncertainty today about how to implement the National Environmental Policy Act (NEPA) than at any time in decades. NEPA is one of the primary laws governing the timeline for federal agency permits and serves as the basis for many legal challenges to project approvals. Two courts have recently ruled that federal regulations establishing NEPA procedures are invalid because the body that issued them, the Council on Environmental Quality (CEQ), lacks rulemaking authority. In response, President Trump issued Executive Order 14154, titled “Unleashing American Energy,” that revokes CEQ’s rulemaking authority and directs the agency to merely coordinate the work of federal agencies. These developments create significant uncertainty for litigants in NEPA cases and will likely complicate and delay agencies’ compliance with the statute.

Understanding NEPA's Role

NEPA was enacted in 1970 to establish a federal policy to protect the environment. The law’s key substantive mandate is found in a single sentence: “all agencies of the Federal Government shall … include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on … the environmental impact of the proposed action.”[1] To ensure consistency in the implementation of NEPA, President Carter issued Executive Order 11991, directing CEQ (an office within the Executive Office of the President, created by NEPA) to promulgate regulations that would apply to all federal agencies.[2] The regulations issued by CEQ in 1978 established the basic framework for NEPA compliance, including the different types of NEPA documents (e.g., categorical exclusions, environmental assessments, and environmental impact statements), the process by which agencies interact with the public (e.g., scoping and comment periods), and the specific topics that agencies must analyze.[3] Most federal agencies subsequently adopted their own regulations, which are patterned on the CEQ regulations and incorporate them by reference.[4]

In 2023, Congress amended NEPA to modify certain procedures previously addressed only in the CEQ regulations, in an effort to speed permitting timelines.[5] CEQ then amended its regulations in 2024 to implement these changes and to make other revisions.[6]

New Questions About CEQ’s Regulations

Two major developments have now cast doubt on the validity of the CEQ regulations. In November 2024, a panel of the U.S. Court of Appeals for the D.C. Circuit ruled in Marin Audubon Society v. Federal Aviation Administration that CEQ lacked the authority to promulgate its NEPA regulations and that these regulations are therefore ultra vires and nonbinding.[7] Then, the U.S. District Court for the District of North Dakota issued a decision in Iowa v. Council on Environmental Quality in February 2025, reaching the same conclusion (citing Marin Audubon) and vacating the CEQ’s 2024 amendments to NEPA, which were promulgated under the Biden administration.[8]

Apparently in response to Marin Audubon, President Trump issued EO 14154 on January 20, 2025. This order revoked President Carter’s EO 11991, which had authorized CEQ to issue regulations, and directed CEQ to “propose rescinding CEQ’s NEPA regulations found at 40 CFR 1500 et seq.” The order also tasked CEQ with coordinating the revision of agency-level NEPA regulations for consistency.[9] The announced purpose of these changes was to maximize “efficient permitting” to speed the approval of certain energy projects.

A New Era for NEPA?

The Marin Audubon and Iowa cases, combined with EO 14154, signal a seismic shift in NEPA compliance and litigation. For half a century, CEQ’s regulations have established the basic procedures for complying with the statute, but these regulations are now in serious question, and their replacements remain unclear. This uncertainty will have major implications for litigants, agencies, and parties seeking federal approvals.

Litigants in NEPA Cases Will Have to Address Whether CEQ Has Rulemaking Authority

The rulings in Marin Audubon and Iowa are not obviously correct that CEQ has always lacked rulemaking authority. While it is true that Congress did not delegate rulemaking authority to CEQ using the type of clear language found in other statutes, NEPA does provide that CEQ may “develop and recommend to the President national policies” and that it can “make and furnish … recommendations with respect of matters of policy and legislation as the President may request.”[10] President Carter’s EO 11991 directed CEQ to “issue regulations to Federal agencies” and directed agencies to “comply with regulations issued by the Council,”[11] which could be interpreted as directing CEQ to develop national procedures for NEPA implementation.

In the 46 years following the original issuance of the NEPA regulations, no court ever held that CEQ lacked the authority to issue those regulations. On the contrary, courts have reviewed and applied those regulations in hundreds of cases, and the U.S. Supreme Court itself has discussed the role of CEQ and its regulations in at least four cases.[12] Moreover, Congress’ 2023 amendments to NEPA, which clarify terms and procedures not found in the original statute but created in CEQ’s regulations,[13] would seem inconsistent with the idea that CEQ lacked authority to issue the regulations in the first place.

The circumstances of Marin Audubon also are unusual. No party in that case challenged CEQ’s rulemaking authority, and the issue was neither briefed nor argued.[14] The opinion, written by Senior Circuit Judge A. Raymond Randolph (who represented government agencies in the last Supreme Court NEPA case before the CEQ regulations were issued),[15] may reflect his own personal history with the issue. Several judges on the D.C. Circuit also noted that the conclusion about CEQ’s rulemaking authority was unnecessary to the holding of the case and therefore may be dicta that can be ignored.[16] For these reasons, Marin Audubon may not be a durable precedent.

These two rulings will likely create schisms in the case law. They are not binding on most federal courts, so other courts may find that CEQ did have rulemaking authority and that its NEPA regulations (at least those that predated the 2024 CEQ amendments) still govern. If history is any guide, this may lead to a period of uncertainty, where plaintiffs may try to forum-shop for jurisdictions that they believe are favorable to their positions. Ultimately, the U.S. Supreme Court may need to resolve the issue.

In the meantime, litigants in new cases should be prepared to argue whether CEQ had authority to issue its NEPA regulations. The specific circumstances of each case may shape whether parties favor or oppose the regulations, as the procedures established by the regulations do not obviously favor any particular group, whether environmental plaintiffs, agencies, or project proponents.

To the extent that other courts agree with Marin Audubon and Iowa that CEQ lacked rulemaking authority, there will be a host of thorny issues that litigants will have to navigate.  For example:

• Incorporation by reference. Some agency NEPA regulations incorporate CEQ’s regulations by reference.[17] Even if CEQ lacked rulemaking authority, could an agency’s incorporation of CEQ’s regulations mean that they nevertheless are binding?[18] One outcome could be that the CEQ regulations will still govern certain agencies’ approvals but not others (at least for a period of time), based on the language in an agency’s NEPA regulations.
• Effect on past agency actions. Prior to last year, no court held that CEQ lacked rulemaking authority and agencies relied on the CEQ regulations to comply with NEPA. Now the two cases and EO 14154 state that CEQ lacks rulemaking authority. Do those rulings only have prospective effect, or do they apply to past agency actions? Since President Trump’s EO 14154 only revoked CEQ’s rulemaking authority on January 20, 2025, that implies that CEQ had rulemaking authority prior to that date. However, Marin Audubon and Iowa indicate that CEQ never had authority to issue the regulations, and the Iowa court vacated CEQ’s 2024 amendments. Does that mean it was error for agencies to have relied on those regulations after the 2024 amendments or at any other point in the past?[19]
• Validity of past NEPA cases. There have been literally hundreds of cases over the past half century that decided whether agencies complied with NEPA based in part on the requirements of CEQ’s NEPA regulations. If CEQ never had authority to issue those regulations, then does that mean that the cases are no longer good law? Do the holdings in those cases need to be parsed to determine which parts are based on the statute and which parts on the CEQ regulations? Right or wrong, it is not hard to see that some parties may argue that the new rulings and EO 14154 call into question almost the entire body of NEPA case law.
• Scope and effect of district court vacatur decisions. The Iowa court did not issue an injunction against the 2024 CEQ amendments but instead vacated them. If another court in a different part of the country disagrees with the Iowa court, are the 2024 CEQ amendments still vacated nationwide? The Iowa case may be the vehicle by which the U.S. Supreme Court addresses the scope and effect of district court vacatur rulings.

These and other questions will likely dominate NEPA cases for years to come.

Project Proponents May Face More Uncertainty and Delays Complying With NEPA

These cases and EO 14154 will also complicate the administrative process for federal agencies and may slow the approval of permits and agency approvals. First, it is unclear how CEQ can “propose rescinding CEQ’s NEPA regulations” when the same executive order apparently revoked its rulemaking authority.[20] Rescinding a regulation is itself a form of rulemaking,[21] and without rulemaking authority, it is unclear how CEQ may propose to rescind its regulations.  

Second, individual agencies may need to revise their own NEPA regulations to remove references to the now-rescinded CEQ regulations. This will require a series of rulemakings, which could take years to complete, and each revision could be subject to challenge. Applicants seeking federal permits may face uncertainty regarding which rules apply until these processes are complete.

Third, the absence of a unified set of NEPA procedures could lead to a situation where different agencies adopt divergent approaches. The CEQ regulations were designed to ensure a consistent set of procedures across federal agencies, but with CEQ’s authority now revoked, each agency may develop its own approach. CEQ is charged with coordinating the agencies, but that may be hard to do without the ability to impose a unified set of procedures. This could create confusion for projects requiring approvals from multiple agencies, each potentially following different procedures yet reviewing the same project.

Fourth, the process of changing NEPA procedures could ironically slow down the permitting process. It will take time for the agencies to figure out what will replace the CEQ procedures, coordinate with CEQ, revise their regulations, and take other steps necessary to implement EO 14154. While President Trump may believe that eliminating the CEQ regulations will expedite approvals, the necessary revisions and coordination could slow agency decision-making in the short term.

Finally, differing NEPA procedures at various agencies could make projects more vulnerable to court challenges. Agencies may adopt different procedures, but courts may apply a single body of NEPA case law in reviewing them. Moreover, fewer procedures may increase judicial flexibility to rule as individual judges see fit: some judges may be more willing to uphold perfunctory environmental analyses, while other judges may require agencies to engage in more searching reviews. In the absence of a unified baseline set of procedures, the question whether an agency has complied with NEPA may become more subjective and outcomes more variable in different courts. 

The Road Ahead for NEPA Compliance

NEPA is often the primary statute driving the timeline for federal agency project approvals and is frequently the basis for legal challenges from project opponents. The recent court rulings and President Trump’s EO 14154 represent arguably the most significant development in NEPA law in half a century. While there is widespread agreement that NEPA compliance is often too slow, these changes may ultimately lead to longer, more complicated processes — at least in the short term.

[1] 42 U.S.C. § 4332(2)(C).

[2] 42 Fed. Reg. 26967 (May 24, 1977).

[3] 43 Fed. Reg. 55990 (Nov. 28, 1978) (promulgating regulations at 40 C.F.R. Parts 1500-1508).

[4] See, e.g., 33 C.F.R. Part 230 (U.S. Army Corps of Engineers); 43 C.F.R. Part 46 (U.S. Department of the Interior); 36 C.F.R. Part 220 (U.S. Forest Service).

[5] Fiscal Responsibility Act, Pub. L. No. 118-5, 137 Stat. 10 (2023).

[6] CEQ, National Environmental Policy Act Implementing Regulations Revisions Phase 2, 89 Fed. Reg. 35442 (May 1, 2024).

[7] Marin Audubon Soc’y v. Fed. Aviation Admin., 121 F.4th 902 (D.C. Cir. 2024); see Am. Whitewater v. FERC, 125 F.4th 1139, 1148 n.2 (D.C. Cir. 2025) (characterizing the holding in Marin Audubon).

[8] Iowa v. CEQ, No. 1:24-cv-00089, *45 (D.N.D. Feb. 3, 2025) (“The Court holds CEQ has no rulemaking authority and therefore, the 2024 Rule is invalid and vacated as a matter of law,” and “[a]ll parties agree that if the 2024 Rule is vacated, the status quo is the version of NEPA in place on June 30, 2024, the day before the rule took effect.”).

[9] Exec. Order, Unleashing American Energy, § 5 (Jan. 20, 2025).

[10] 42 U.S.C. § 4344(4), -(8).

[11] 42 Fed. Reg. at 26967-68 (emphasis added).

[12] See Dept. of Transp. v. Public Citizen, 541 U.S. 752, 757 (2004) (“The Council on Environmental Quality (‘CEQ’), established by NEPA with authority to issue regulations interpreting it, has promulgated regulations to guide federal agencies”); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354 (1989) (discussing CEQ and President Carter’s EO 11991); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 372 (1989) (“[t]he CEQ regulations … are entitled to substantial deference”); Andrus v. Sierra Club, 442 U.S. 347, 356–57 (1979) (discussing President Carter’s directive that CEQ promulgate regulations).

[13] See Pub. L. No. 118-5, § 321 (defining terms and revising procedures found in CEQ regulations).

[14] Marin Audubon, 121 F.4th at 920 (dissenting opinion of Chief Judge Srinivasan).

[15] See Kleppe v. Sierra Club, 427 U.S. 390, 393 (1976) (identifying counsel).

[16] Marin Audubon Soc’y v. Fed. Aviation Admin., 2025 WL 374897 (D.C. Cir. Jan. 31, 2025) (concurring opinion of Chief Judge Srinivasan and six other judges to order denying review en banc).

[17] E.g., 36 C.F.R. § 220.1(b) (USFS NEPA regulations, stating that “this part supplements and does not lessen the applicability of the CEQ regulations and is to be used in conjunction with the CEQ regulations”).

[18] See, e.g., 1 C.F.R. Part 51 (procedures for regulations to incorporate documents by reference); American Society for Testing & Materials v. Public.Resource.Org, Inc., 896 F.3d 437 (D.C. Cir. 2018) (discussing circumstances where agency may incorporate private materials into regulations).

[19] Cf. Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991) (vacating RCRA “mixture rule”); United States v. Goodner Bros. Aircraft, Inc., 966 F.2d 380, 385 (8th Cir. 1992) (overturning prior convictions that were based in part possibly on the “mixture rule,” which was vacated post-conviction).

[20] Compare Unleashing American Energy §§ 5(a) and 5(b).

[21] FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).