Law360 (February 20, 2025, 10:15 PM EST) — The White House says it rescinded National Environmental Policy Act regulations in an effort to “expedite and simplify” the federal permitting process, but attorneys say the immediate effect of the move will likely be to confuse agencies and slow down project approvals.
The White House Council on Environmental Quality‘s interim final rule announced Wednesday that it’s rolling back its NEPA regulations, which have been in place since 1978 and have guided federal agencies during the permit application process for projects like pipelines and highways.
But in the absence of direction from the CEQ, agencies could find themselves at a loss on how to interpret certain parts of the law, which could delay, instead of speeding, the permit application review process and result in different implementations across the government, said Neal McAliley, a partner at Carlton Fields PA who specializes in the environmental aspects of project development.
“In the short to medium term, it’s going to make NEPA compliance much more confusing, both for agencies and for courts and litigants,” he said. “And I think the effect of this could easily slow down permitting.”
That could frustrate project backers that want clear, predictable and efficient procedures, he said.
“If you really want to get rigorous in your analysis about what to do, it becomes a head-scratcher,” McAliley said. “You’re going to have a lot of questions among people in the agencies.”
Deborah Sivas, a professor at Stanford Law School and director of its Environmental Law Clinic, said the regulatory rollback is going to bring “a fair amount of chaos.”
She noted that in guidance accompanying the rule, the CEQ gave other agencies a year to review their NEPA regulations and procedures and revise them to conform to the Trump administration’s priorities. At the same time, the CEQ said agencies shouldn’t delay pending or ongoing NEPA analyses and should look to regulations promulgated during the first Trump administration if they need further guidance.
“They’re trying to have it both ways: ‘We’re pulling back, but don’t stop approving projects,’” Sivas said. “I think it’ll slow up some things in the short term.”
Peter Whitfield, a partner at Sidley Austin LLP who works in project development, said the decision to roll CEQ’s NEPA regulations back will create “tremendous uncertainty.”
“There will be questions as to what’s required and not required under the law,” Whitfield said.
The CEQ said an interim final rule rescinding all its NEPA regulations will be published in the Federal Register in a matter of days.
A prepublication version of the rule points to President Donald Trump’s executive order “Unleashing American Energy” as legal justification for the rescission. The order, among other things, revoked a 1977 executive order issued by President Jimmy Carter that instructed the CEQ to begin crafting regulations to implement NEPA’s aims.
“CEQ cited [Carter’s order] as authority in 1978 when it first issued its NEPA regulations,” the CEQ said. “However, that executive order has now been rescinded, and CEQ therefore has determined that it is appropriate to remove its regulations from the Code of Federal Regulations.”
The CEQ said Trump’s order is “an independent and sufficient reason” to roll back the regulations, and it said it has “serious concerns” about its statutory authority to maintain its NEPA implementing regulations without an executive order mandating them.
“The plain text of NEPA itself may not directly grant CEQ the power to issue regulations binding upon executive agencies,” the council said.
That echoes some recent D.C. Circuit and North Dakota federal judges’ determinations that NEPA does not authorize the CEQ to issue binding regulations.
The CEQ’s rule is very likely to be challenged in court, said Kristen Boyles, managing attorney of Earthjustice‘s northwest regional office.
“They’ve created an interesting conundrum for themselves by saying they’re going to repeal the regulations while they have already repealed the 1977 executive order that led to the regulations in the first place,” Boyles said. “So they’ve created a circular reasoning: ‘We don’t know if we have authority to issue these rules, therefore we’re getting rid of them.’”
McAliley took the same view.
“The administration could have simply directed CEQ to rescind the regulations without rescinding President Carter’s executive order, and then there wouldn’t be any question about their rulemaking authority. But that’s not what they did, so they created an issue,” he said.
The CEQ’s decision to rescind the regulations via an interim final rule, which bypasses the proposed rule and public comment phases they went through before promulgation, could also give challenges a legal hook, Boyles said.
Returning to the Trump administration’s stated goal of easing the approval process for projects, she said the withdrawal of the CEQ’s regulations could end up giving project opponents more room to challenge approvals.
“When you get rid of the rules that everybody understands, and certain terms … now those things are undefined. There’s going to be an argument about what’s the definition of those terms,” Boyles said. “That’s what happens in litigation.”
–Editing by Brian Baresch and Drashti Mehta.