The Permitting EOs Part 1: CEQ Gets Gutted

The posting-to-policy pipeline is undefeated

CEQ authority is dead, and it’s time to party.

Trump unleashed a wave of Executive Orders (EOs) on Monday evening. It'll take at least a few more days for me to work through all of the major provisions, but it's clear that the two big permitting storylines are the Unleashing American Energy and Declaring A National Energy Emergency EOs. Both are chock full of interesting ideas — and I'm proud to say that if you’ve been reading Green Tape, you will have already gotten a sneak peak of what several of these provisions were going to look like.

Today, though, we're just going to focus on the big news: President Carter’s 1977 EO, which empowered the Council on Environmental Quality (CEQ) to issue binding NEPA regulations, has been revoked. NEPA will never be quite the same.

We’ve been building up to this point since November, when the DC Circuit issued its shock decision in Marin Audubon Society v. FAA, ruling that CEQ lacked the statutory authority to issue regulations. For decades, courts and agencies alike had simply accepted CEQ rulemaking as gospel. But against the backdrop of the Supreme Court's overturning of the Chevron Doctrine, the D.C. Circuit upended that assumption, throwing out decades of NEPA regulations and case law. This, in turn, made Monday’s EO possible. (Note: for more reading on Marin Audubon, I recommend this interview in Statecraft).

Trump has now effectively rendered Marin Audubon moot by embracing its central premise that CEQ does not have rulemaking power. His language is sweeping:

• Carter's 1977 Executive Order 11991 is revoked outright

• CEQ must propose rescinding its existing NEPA regulations and provide new, streamlined guidance within 30 days

• A working group will coordinate revision of each agency's own NEPA procedures

• Agencies must prioritize speed, efficiency, and "certainty," with expanded use of general permits and permits-by-rule

What Does This Mean in Practice?

Since Carter's EO, CEQ's regulations have defined how every federal agency conducts environmental reviews, from which projects require an EIS versus an EA, to how agencies must consider cumulative impacts, to the specific required format of NEPA documents. These weren’t suggestions or guidance — they were binding rules that agencies had to follow, creating requirements far beyond NEPA's basic statutory mandate. Environmental groups have used these regulatory requirements as hooks for litigation, challenging projects based on technical non-compliance with CEQ's regulations.

Without those binding regulations in place, agencies are free to adopt much narrower definitions of terms like "significance" and “major federal action,” trim back their alternatives analyses, and treat factors like environmental justice or greenhouse gas emissions as optional rather than mandatory considerations. What’s more, obstructionists can no longer use CEQ regulations as the basis for litigation. All of this could serve to make the NEPA review process significantly less burdensome.

The hard part will be getting the implementation right. CEQ faces an enormous challenge in the next 30 days. They’ll need to craft guidance that gives agencies enough direction to maintain some consistency in NEPA implementation while avoiding the kind of prescriptive requirements that could be challenged as de facto regulations. The key will be focusing on the bare statutory requirements — a good faith review of direct environmental impacts — while leaving agencies flexibility on methodology and scope.

Early Recommendations

As a starting point, here are four ideas for CEQ and implementing agencies.

1. Narrowing the Definition of “Major Federal Action”

Under NEPA’s text, NEPA review is kicked off by “major Federal actions significantly affecting the quality of the human environment.” Courts, historically guided by CEQ’s regulations, have treated almost any form of federal funding, permitting, or substantial involvement as a “major Federal action.” With CEQ’s regulations no longer binding, agencies could reinterpret that phrase to exclude a wide array of lower-level, routine, or indirect involvements.

An agency could, for instance, decide that a federal contribution or approval is only “major” if the federal government exercises controlling authority over the project’s design, location, or operation. Smaller-scale projects with minimal federal funding or limited discretionary control could be defined out of “major Federal action.” Similarly, the agency could limit “significantly affecting” to direct, quantifiable, immediate impacts, foregoing the broader interpretations that once included indirect or cumulative effects. This narrower view of “major Federal action significantly affecting the environment” will, by definition, remove many projects from NEPA’s EIS or EA requirements.

Agencies should still provide a reasoned explanation for where they draw the line. They can rely on the plain text of NEPA and a few touchstone court decisions that emphasize the importance of substantive federal control or major federal funding. The key is constructing an administrative record to show they have considered the statutory language and developed a policy that meaningfully differentiates between projects that truly require extensive review and those that do not.

2. Adopting Bright-Line Thresholds for Significance

Once agencies determine a project meets the “major Federal action” test, the next question is whether it “significantly affects” the environment so as to trigger an Environmental Impact Statement. In the old CEQ regulations, significance was fleshed out through various factors (e.g., context, intensity, potential for controversy, and so on). Post–Marin Audubon, agencies can devise their own significance thresholds.

One aggressive but potentially defensible strategy is to establish explicit numeric or categorical thresholds below which a project is presumed not to “significantly” affect the environment. This approach effectively merges the concept of categorical exclusions with a more formal cut-off for significance. Examples could include:

• Limiting NEPA review for projects below a specific acreage of land disturbance or habitat impact.

• Setting an annual emissions or pollution-load threshold under which the project is presumed insignificant.

• Defining project types — like certain routine facility upgrades or maintenance work — that, based on prior experience and documented analyses, do not rise to the level of significant environmental harm.

So long as these thresholds are supported by a reasonable record of insignificant impacts, agencies can argue they meet NEPA’s mandate.

3. Shortening Public Comment

Agencies can establish much tighter scoping protocols and shorter comment periods, provided they still give the public a meaningful opportunity to participate. NEPA requires public input, but does not mandate long or multiple rounds of scoping. By restricting the duration and scope of comments to the most directly relevant environmental issues, agencies can streamline reviews while still respecting NEPA’s participatory element.

4. Narrowing Alternatives Analysis

Agencies may significantly narrow the range of alternatives considered in an EA or EIS, limiting them to the proposed action and a bare minimum of legitimate variations. Courts have traditionally required a “reasonable” range of alternatives, but there is room to argue that reasonableness does not obligate agencies to evaluate every conceivable approach, especially if the statutory authority or the project’s purpose and need constrain the scope.

What Comes Next?

Looking forward, much will depend on how environmental groups challenge these changes in court. While CEQ's regulations are no longer binding, NEPA is still on the books as a statute, and agencies will still have to show they took a “hard look” at the environmental impacts of projects. That leaves open various legal arguments about what compliance demands when there are no uniform regulations.

If CEQ fumbles the guidance or the working group gets bogged down in interagency disputes, we could see a mess of inconsistent approaches that invites judicial intervention. But if they execute this well — and I'm optimistic they will — we could finally see NEPA return to something closer to its original purpose.

For my part, I’ll be working over the next week or two to build out a framework for agencies as they develop their NEPA procedures from scratch. More to come on this soon.