Understanding What Environmental Review Executive Orders Mean for Planning

Sweeping Executive Action

A series of legal decisions and executive actions by the Trump administration suggest sweeping changes may be in store for the regulatory process that drives federal environmental reviews under the National Environmental Policy Act (NEPA). These new actions are accelerating debates on streamlining and modernizing permitting and reviews and prompting new regulatory actions that will shape planning practices.

Among his earliest actions, President Trump signed the "Unleashing American Energy" Executive Order (EO). The EO rescinds a 1977 Carter-era order that charged the White House Council on Environmental Quality (CEQ) with issuing binding standards and regulations implementing NEPA. While the statutory standards in the text of NEPA remain in place, the EO calls for eliminating CEQ's role in creating regulations.

Shifting NEPA Responsibilities

The EO lays out a plan where responsibility for NEPA rules would shift to individual federal agencies who would set their standards. In the near term, CEQ will remove its existing regulations, and agencies will use their own previously adopted NEPA standards for reviews while new standards consistent with the EO are put in place. An interagency working group has been established to ensure consistency, and CEQ is charged with working to harmonize approaches across agencies. CEQ was required to rescind its NEPA regulations within 30 days, and an interim final rule was filed on February 16 doing just that.

In the time between the rescission of the CEQ NEPA regulations and any revised or new agency-level implementing regulations, agencies must rely on the NEPA statute and their own existing NEPA implementing regulations and policies. Agencies continue to have an obligation to comply with NEPA as amended by the Fiscal Responsibility Act of 2023. Those statutory changes included presumptive deadlines and page limits for environmental impact statements and environmental assessments and the authorization for agencies to adopt a categorical exclusion established by another agency.

Federal Courts Setting Precedents

The EO builds on a November 2024 U.S. Court of Appeals for the D.C. Circuit ruling in Marin Audubon Society v. Federal Aviation Administration. In that case, a three-judge panel held that CEQ lacked statutory authority to issue NEPA regulations. The EO essentially mirrors that ruling. A separate federal court decision in North Dakota affirmed the D.C. Circuit's finding that CEQ lacked authority to issue regulations.

Separate from the issue of CEQ's authority, the U.S. Supreme Court heard arguments late last year in another NEPA-related case. The case focuses on the extent to which environmental reviews should consider impacts beyond the authority of the reviewing agency and the location of the proposed project. While a final ruling won't come until later this year, it is widely expected that the court will limit the scope of NEPA, continuing a trend weakening the authority of regulatory agencies.

What Planners Can Expect

The impact on planners is likely to be two-fold.

1. Planners who are NEPA practitioners will face an initial period of procedural uncertainty

The reliance on agency-specific rules is expected to lead to significant changes in review processes. The combination of administrative actions, legal decisions, and potential new legislation suggests fundamental shifts for NEPA practitioners.

Looking ahead to potential new agency NEPA regulations, there are several likely paths that regulators may take. Agencies may aim to narrow when NEPA is triggered by changing definitions for "major federal actions" and standards for the "significantly affects" threshold in the statute. This could limit the number and range of projects subject to NEPA in the first place. Other likely approaches include narrowing the alternatives analysis, expanding categorical exclusions, and redefining the scope of potential impacts.

2. Projects may move more quickly through a streamlined process

This is not simply a partisan issue, as there are advocates on both sides of the aisle who see a potential benefit for some clean energy, housing supply, and transportation projects. However, uncertainty and potentially conflicting standards may generate litigation.

Legal Challenges to CEQ's NEPA Authority Expected

While the opportunity for legal challenges to the changes in CEQ's regulatory authority appears thin, updates to agency rules will see litigation challenging whether the new process meets the unchanged statutory requirements.

Congress may also get in on the reform act. NEPA has been the target of bipartisan frustration in Congress in recent years, with provisions aimed at making reviews faster and more efficient contained in a variety of legislation. New permitting reform legislation is expected in the new Congress.

APA will be engaging with Capitol Hill and federal agencies as the process unfolds to represent the perspective of planners and provide resources and information as planners navigate a period of regulatory uncertainty and change.

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