This piece originally appeared at Green Tape.
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 peek 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Carter’s 1977 EO, which empowered the Council on Environmental Quality (CEQ) to issue binding NEPA regulations, has been revoked.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.
