This piece originally appeared at Green Tape.
When President Trump issued the executive order nullifying all NEPA regulations on his first day in office, he set in motion a 30-day shot clock, at the end of which the now-defanged Council on Environmental Quality will have to issue entirely new NEPA guidance. The mandate, in short, is to rewrite one of the country’s most complex environmental laws, paring back its requirements wherever possible, in under a month.
As soon as we saw the news, my friend Aidan at IFP and I started thinking about what this new guidance could look like. The result is our new paper, published yesterday.
For all the wonky details, readers should just go check out the paper, but I thought I might share some higher-level thoughts here.
The success of the NEPA EO will come down to implementation. Throwing out CEQ regulations is great, but only if agencies’ replacement regulations are a) less burdensome and b) survive the inevitable court challenges. In the post-Chevron era, the best way to do this is to hew closely to the language of the statute.
You can think about this like a continuum, where the left side is “more burdensome” and the right side is “less burdensome.” We want to move right from the current CEQ regulations – but eventually we’ll reach a line where our new interpretations of the law are so aggressive that they’re likely to be thrown out in court. We should stop here, or risk being sent back to where we started.
The incredible stroke of luck is that the Fiscal Responsibility Act of 2023 (FRA) changed the language of NEPA. At the time of its passage, the FRA didn’t seem like much – in fact, many permitting reform advocates, myself included, cast it aside as a nothingburger. This was in large part because the CEQ’s implementation of the FRA’s changes did almost nothing to change the status quo, in some cases going as far as to drop some of the FRA’s new language. But when you remove CEQ regulations from the picture – as the recent executive order has done – and just compare the FRA to the original text of NEPA, it’s very clear that the FRA provides a clear mandate to narrow the scope of NEPA review.
