This piece originally appeared at Green Tape.
Well, things have not been boring.
On Sunday, CEQ announced a pending interim final rule to remove all of its NEPA implementing regulations. The move itself was not a surprise, as President Trump’s executive order called on CEQ to do this. But the mechanism was unusual: by using an interim final rule, CEQ will be skipping notice-and-comment on the front end and will simply rescind the regulations outright.
Many commentators suggested that it would have made more sense to just go through notice-and-comment to avoid exposing itself to Administrative Procedure Act challenges. I’m sympathetic to this view, but there was, at the very least, some logic to the decision: by revoking President Carter’s 1977 E.O., President Trump had revoked CEQ’s basis for issuing NEPA regulations in the first place. And at the same time, courts have increasingly questioned the legitimacy of CEQ regulations, from the now-infamous Marin Audubon decision to the recent North Dakota district court ruling, which vacated CEQ's most recent rule after concluding CEQ lacked rulemaking authority. It may well be, then, that in the view of courts, there’s really nothing to rescind.
The news kicked off a flurry of debate on Twitter, with some Very Online individuals announcing that NEPA Was Killed (it wasn’t) and others concluding that rescinding CEQ regulations is Bad, Actually (it isn’t).
