Executive Order 14154 and the Uncertain Future of NEPA
Ben Foster
Introduction
Since it was signed into law on New Year’s Day 1970, the National Environmental Policy Act (NEPA) has been a key tool leveraged by the federal government, the states, and environmental advocates to hold agencies and private actors accountable for the potential environmental and ecological impacts of development. Left without specifics in the text of the Act itself, NEPA’s technical requirements have been regulated by the White House Council on Environmental Quality (CEQ) since 1978 in response to President Carter’s Executive Order 11991.[1]
Executive Order 14154, issued by President Trump on January 20, 2025, gutted the traditional authority of CEQ to promulgate binding NEPA regulations in the name of efficiency and simplicity.[2] In doing so, the Trump Administration shifted the burden of regulation to individual agencies and created significant uncertainty and ambiguity around the future of the NEPA process and its role in environmental protection.
Background of Recent Judicial, Executive, and Agency Action
Two recent federal judicial opinions helped undermine the authority of CEQ to issue NEPA regulations. First, in November 2024, the D.C. Circuit Court of Appeals held in Marin Audubon Society v. Federal Aviation Administration that CEQ had no rulemaking authority to issue binding regulations implementing NEPA.[3] The court concluded that the regulations were invalid because CEQ could not identify an independent statutory source of authority from which it could trace rulemaking authority.[4] A few months later, on February 3, 2025, the U.S. District Court for North Dakota applied the reasoning of Marin Audubon in Iowa v. CEQ to reach the same conclusion: that a plain-text reading of the statute does not grant CEQ the authority to issue NEPA regulations, and that, despite decades of practice to the contrary, CEQ’s 2024 NEPA regulations were invalid.[5]
President Trump acted quickly upon taking office to rescind CEQ’s rulemaking authority. On January 20, the Administration issued Executive Order 14154, “Unleashing American Energy,” to “expedite and simplify the permitting process.”[6] The Order revoked EO 11991 and directed CEQ to propose recission of their NEPA regulations within 30 days.[7] It also instructed the Chairman to form a working group to coordinate revisions of all federal agency’s NEPA regulations to promote consistency across departments.[8]
CEQ acted accordingly, finalizing the Interim Final Rule on February 19.[9] The Rule asserts that, without its previously-relied-upon authority to implement regulations (EO 11991), CEQ has been unable to identify any authority to maintain its regulations.[10] The Council concludes that because “the plain text of NEPA itself may not directly grant CEQ the power to issue regulations binding upon executive agencies,” it may lack the authority to issue binding rules on agencies.[11] The Interim Rule was published in the Federal Register on February 25.[12]
CEQ issued a memorandum to the heads of all federal departments and agencies in tandem with the Interim Final Rule to assist agencies with NEPA implementation.[13] The memo stresses that agencies must “prioritize efficiency and certainty over any other policy objectives that could add delays and ambiguity to the permitting process.”[14] While their revisions are pending, it directs agencies to continue to follow their existing practices and procedures for implementing NEPA, and recommends that agencies consider voluntarily relying on CEQ’s NEPA regulations for ongoing reviews and projects.[15] The memo says agencies should revise their internal procedures within the next twelve months.[16]
Significance and Future Considerations
Executive Order 14154 is significant because it revokes the traditional authority of CEQ to issue binding regulations and undermines the historical understanding of NEPA. Despite an attempt by the memo to provide a path for transition, uncertainty over how to issue NEPA regulations will present challenges for many projects.
The Trump Administration’s solution to the perceived issue of bureaucratic bloat has the potential to create more problems than it solves. Agencies are responsible for issuing their own regulations. Because of the complex and technical nature of the process, many agencies model their own regulations off of CEQ’s and supplement them only with details specific to their programs.[17] By removing the CEQ regulations and directing agencies to promulgate their own regulations, the Administration opens the possibility that agencies will put forth distinct sets of individualized rules.[18] If that comes to pass, the Administration may have inadvertently created a system hallmarked by confusion and red tape, as opposed to economy and efficiency. Unique rules for agencies have the potential to create uncertainty for parties who struggle to understand which agency regulations guide their activities. Because any violation of NEPA guidelines results in significant delays when parties are forced to go through the NEPA process again, lack of clarity in the process has tremendous potential to slow down approvals and delay permitting, rather than speed them up.
If the goal of rescinding CEQ’s authority is to streamline the process, it would seem more efficient to create centralized, top-down procedures instead of individual agency approaches. This approach would provide the benefit of standardizing many of the complicated rules and regulations around NEPA, form guidelines that agencies of all sizes can use to create rules, and be approachable and easy to understand for applicants. In other words: something like what was in place. Perhaps the Administration believes the working group can coordinate interdepartmental activity and standardize many NEPA processes, but between the number of agencies and the individual needs of each one it seems like a difficult task.
One final topic to consider in connection with the impact of EO 14154 is the upcoming Supreme Court decision in Seven County Infrastructure Coalition v. Eagle County.[19] At issue in that case is the extent to which NEPA requires an agency to consider environmental impacts of a regulated action that go beyond the proximate effects of an action.[20] To resolve this question of “up-” and “down-” stream effects, the Court may decide to provide a new or modified test to review whether agencies have properly enforced the boundaries of their NEPA responsibilities.[21] Any potential new test would rely on interpreting whatever form of NEPA regulations are in place. They are tightly intertwined; each is likely to have an important influence on the other.
[1] See 40 C.F.R. §§1500-08 (2024); Exec. Order No. 11991, 3 C.F.R. 69 (1978).
[2] Executive Order No. 14154, 90 Fed. Reg. 8353 (Jan. 20, 2025).
[3] Marin Audubon Soc’y v. Fed. Aviation Admin., et. al., 121 F.4th 902 (D.C. Cir. 2024).
[4] Id. at 912.
[5] Iowa v. Council on Env’t Quality, No. 1:24-cv-00089, 2025 U.S. Dist. LEXIS 36732 (D. N.D. Feb. 3, 2025).
[6] EO 14154 at 8355.
[7] Id.
[8] Id. at 8355-56.
[9] Removal of National Environmental Policy Act Implementing Regulations, 90 FR 10610.
[10] Id. at 10613.
[11] Id.
[12] Id.
[13] Katherine R. Scarlett, Memorandum for Heads of Federal Departments and Agencies from the Council on Env’t Quality (Feb. 19, 2025).
[14] Id. at 1.
[15] Id.
[16] Id. at 7.
[17] Marin Audubon Society at 914 (citing 40 C.F.R. §1507.3(a)-(b) (1978)).
[18] See Rafe Peterson et al., Seismic Changes in Federal Environmental Reviews: CEQ to Rescind NEPA Regulations, Holland & Knight (Feb. 25, 2025), https://www.hklaw.com/en/insights/publications/2025/02/seismic-changes-in-federal-environmental-reviews-ceq-rescinds#:~:text=Interim%20Final%20Rule-,On%20Feb.,final%20rule%20revoking%20its%20regulations.
[19] Seven County Infrastructure Coalition v. Eagle County (Docket No. 23-975).
[20] The Reasonably Foreseeable Effects of Seven County Infrastructure coalition, Bracewell (Dec. 13, 2024), https://www.bracewell.com/resources/the-reasonably-foreseeable-effects-of-seven-county-infrastructure-coalition/.
[21] Id.