The incoming Trump administration has a generational opportunity to restructure environmental permitting in the United States. The D.C. Circuit's landmark ruling in Marin Audubon Society v. FAA has opened sweeping new pathways for NEPA reform. Interior Secretary and “energy czar” Doug Burgum has identified cutting red tape as a top priority for his tenure. And the court battle over Florida's Section 404 program assumption has thrust the Clean Water Act back into the spotlight.
There is almost certain to be legislative efforts at permitting reform – first through Republican party-line attempts in reconciliation, and again through bipartisan negotiations in the surface transportation reauthorization in 2026. But the executive branch can already achieve substantial progress through existing powers.
Below, I’ve outlined the key executive branch administrative actions available for reforming permitting. The main story for the next four years will be the Council on Environmental Quality (CEQ), but EPA has a huge opportunity, too.
Redefining the National Environmental Policy Act (NEPA)
The D.C. Circuit's ruling in Marin Audubon Society v. FAA provides a watershed opportunity to reconstruct federal environmental review. By establishing that CEQ lacks authority to issue judicially enforceable regulations, this decision enables the administration to strip away decades of accumulated procedural requirements while maintaining statutory compliance. The administration should capitalize on this opening through an executive order that explicitly nullifies all existing CEQ regulations and replaces them with streamlined internal guidance.
This new framework should radically narrow the scope of environmental review by establishing direct physical impacts as the core statutory requirement under NEPA. The administration can effectively eliminate most indirect and cumulative effects analysis by declaring them minimal-scrutiny considerations, requiring only cursory documentation to maintain a defensible record. This approach renders decades of expansive judicial interpretations effectively moot while avoiding clear grounds for reversal based on complete non-consideration.
Agencies should establish clear internal guidance that redefines what constitutes a "significant" environmental impact, setting such a high threshold that most projects would fall below it even without categorical exclusions. This approach ensures that if categorical exclusions face legal challenges in the post-Marin Audubon landscape, agencies retain alternative mechanisms for streamlined review.
For projects that still require review, agencies should restrict alternatives analysis to minimal variations of the proposed action. The administration can further accelerate projects by declaring that certain analysis requirements—including environmental justice review, cumulative climate impacts, and induced growth effects—exceed NEPA's statutory authority and are therefore optional agency considerations rather than legal requirements. Public engagement can be streamlined by limiting comment periods and restricting the scope of comments to direct physical impacts.
The administration must move swiftly to implement these reforms while the judicial landscape remains favorable. While Marin Audubon creates powerful precedent in the D.C. Circuit, other crucial venues for NEPA litigation - particularly the Ninth Circuit - remain unbound by this decision. The administration should strategically select and accelerate test cases that can reach the Supreme Court during the current term, capitalizing on the existing Court's receptiveness to arguments that limit agency obligations under NEPA.
The administration should take one of two immediate steps regarding Marin Audubon:
Direct DOJ to withdraw its pending en banc petition to preserve the favorable D.C. Circuit ruling, OR
If broader precedent is desired, DOJ should seek Supreme Court review of Marin Audubon (or identify a more suitable vehicle) to definitively resolve the question of CEQ's regulatory authority nationwide
This approach effectively restores NEPA to its original intent as a basic procedural statute while eliminating the complex regulatory framework that has made it a major obstacle to infrastructure development. While environmental groups will likely challenge these changes, the Marin Audubon precedent significantly limits judicial enforcement options. The administration should coordinate these reforms with Congressional efforts to codify restrictions on judicial review, particularly regarding standing requirements and injunctive relief.
NEPA Process Improvements
Categorical Exclusions (CXs)
While the Marin Audubon decision raises questions about CEQ's authority to govern CX creation, individual agencies likely retain authority to establish categorical exclusions through their own rulemaking processes. Key agencies should immediately initiate rulemakings to establish expansive new CXs for critical infrastructure, including:
Department of Energy: Small modular nuclear reactors, electric power substations
Department of Interior:
Natural gas infrastructure on federal lands
Data center construction
Department of Defense: Energy infrastructure on military installations
Executive Order Reform
The administration should systematically rescind executive orders that have expanded NEPA's scope beyond statutory requirements. Priority targets include:
EO 12898 (Environmental Justice)
EO 13990 (Climate Crisis)
Any other EO that requires environmental justice analysis, cumulative climate impact assessment, and other non-statutory review elements that agencies have treated as mandatory.
Programmatic Environmental Reviews
Programmatic Environmental Assessments (PEAs) and Impact Statements (PEISs) enable agencies to evaluate broad categories of similar actions simultaneously. This approach, demonstrated in BLM's Western Solar Plan, has the potential to dramatically reduce individual project review requirements. Agencies should expand use of programmatic reviews for large-scale infrastructure initiatives while focusing solely on direct effects required by statute.
U.S. Environmental Protection Agency (EPA) Reforms
Clean Water Act Section 404 Delegation
EPA should prioritize defending Florida's Section 404 permitting delegation in pending litigation. While the previous administration declined to defend this delegation, reversing this position would support state assumption of permitting authority and create favorable precedent for other states seeking similar delegations.
Minor Source Permitting
Current implementation of minor source air permitting varies significantly across states, creating unnecessary regulatory burden and uncertainty. This is in large part due to the lack of federal guidance from EPA. EPA can address this through comprehensive federal guidance that includes a model permit program, clear interpretation guidelines, and standardized procedures. This reform would prevent overregulation while ensuring appropriate environmental controls.
Plantwide Applicability Limitations (PALs)
PAL permits offer facilities operational flexibility while maintaining strict environmental standards through facility-wide emissions caps. Updated EPA guidance should clarify that PALs should not automatically reduce at renewal, establish clear procedures for renewal evaluations, and document successful implementations. This reform would increase adoption of this valuable permitting tool.
Multi-Media Permitting
A comprehensive approach to environmental permitting could significantly reduce administrative burden while maintaining protection. EPA should develop “multimedia” permits, which integrate requirements across air, water, and waste programs, enabling facility-wide coverage through a single permit. This approach reduces overhead and accelerates permit processing.
Really liked the ideas for the CXs but would love to add transmission and transit to those lists. Any thoughts why we shouldn't?