[Federal Register Volume 91, Number 5 (Thursday, January 8, 2026)]
[Rules and Regulations]
[Pages 618-632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-00178]
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COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and
1508
[CEQ-2025-0002]
RIN 0331-AA10
Removal of National Environmental Policy Act Implementing
Regulations
AGENCY: Council on Environmental Quality.
ACTION: Final rule.
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SUMMARY: The Council on Environmental Quality (CEQ) is adopting the
interim final rule published on February 25, 2025, as final. In the
interim final rule, CEQ provided a 30-day comment period for the public
to review and make comments. This final rule addresses public comments
and adopts as final the interim final rule, without changes, removing
all iterations of CEQ's regulations implementing the National
Environmental Policy Act of 1969 (NEPA) from the Code of Federal
Regulations.
DATES: This rule is effective January 8, 2026.
FOR FURTHER INFORMATION CONTACT: Megan Healy, Principal Deputy Director
for NEPA, 202-395-5750, [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Congress enacted NEPA to declare a national policy ``to use all
practicable means and measures, including financial and technical
assistance, in a manner calculated to foster and promote the general
welfare, to create and maintain conditions under which man and nature
can exist in productive harmony, and [to] fulfill the social, economic,
and other requirements of present and future generations of
Americans.'' 42 U.S.C. 4331(a).
NEPA, as amended by the Fiscal Responsibility Act of 2023 (FRA),
Public Law 118-5 (June 3, 2023), furthers this national policy by
requiring Federal agencies to prepare a ``detailed statement'' for
proposed ``major Federal actions significantly affecting the
[[Page 619]]
quality of the human environment.'' 42 U.S.C. 4332(2)(C). NEPA, as
amended, also provides that agencies shall prepare ``environmental
assessments'' for proposed major Federal actions which do not have
reasonably foreseeable significant environmental effects or for which
the significance of their environmental effects is unknown, 42 U.S.C.
4336(b)(2), unless the action is excluded pursuant to a categorical
exclusion. The statute defines categorical exclusions as a
determination by an agency that a category of actions normally does not
have a significant environmental effect. 42 U.S.C. 4336e(1). NEPA
includes thresholds for determining whether an environmental document
must be prepared and the appropriate level of environmental review. 42
U.S.C. 4336(a)-(b). NEPA further mandates that Federal agencies ensure
the professional and scientific integrity of environmental documents;
use reliable data and resources when carrying out NEPA; and study,
develop, and describe technically and economically feasible
alternatives. 42 U.S.C. 4332(2)(D)-(F). NEPA does not mandate
particular results or substantive outcomes. Rather, NEPA requires
Federal agencies to consider the environmental effects of proposed
actions as part of agencies' decisionmaking processes.
NEPA also established CEQ as an advisory agency within the
Executive Office of the President to assist and advise the President on
environmental matters and the implementation of NEPA's national policy.
42 U.S.C. 4342; 42 U.S.C. 4344. Federal agencies must consult with CEQ
while identifying and developing methods and procedures to govern
environmental analysis of their proposed major Federal actions, 42
U.S.C. 4332(2)(B), and otherwise provide assistance to CEQ, 42 U.S.C.
4332(2)(L).
In 1970, President Nixon issued E.O. 11514, Protection and
Enhancement of Environmental Quality, which directed CEQ to ``[i]ssue
guidelines to Federal agencies for the preparation of detailed
statements on proposals for legislation and other Federal actions
affecting the environment, as required by [42 U.S.C. 4332(2)(C)].'' 35
FR 4247 (March 7, 1970). CEQ issued interim guidelines in 1970, 35 FR
7390 (May 12, 1970), and revised them in 1971, 36 CFR 7724 (April 23,
1971), and 1973. 38 CFR 20550 (August 1, 1973).
In 1977, President Carter issued E.O. 11991, Relating to Protection
and Enhancement of Environmental Quality. E.O. 11991 amended section
3(h) of E.O. 11514, directing CEQ to ``[i]ssue regulations to Federal
agencies for the implementation of the procedural provisions of [NEPA]
. . . to make the environmental impact statement process more useful to
decision[ ]makers and the public; and to reduce paperwork and the
accumulation of extraneous background data, in order to emphasize the
need to focus on real environmental issues and alternatives,'' and to
``require [environmental] impact statements to be concise, clear, and
to the point, and supported by evidence that agencies have made the
necessary environmental analyses.'' 42 FR 26967 (May 25, 1977). E.O.
11991 also amended section 2 of E.O. 11514 to require agency compliance
with the regulations issued by CEQ. The Executive Order was based on
the President's constitutional and asserted statutory authority,
including NEPA, the Environmental Quality Improvement Act, 42 U.S.C.
4371 et seq., and section 309 of the Clean Air Act, 42 U.S.C. 7609. CEQ
promulgated its NEPA implementing regulations in 1978. 43 FR 55978
(November 29, 1978). CEQ made typographical amendments to the 1978
implementing regulations in 1979 and amended one provision in 1986. See
44 FR 873 (Jan. 3, 1979) and 51 FR 15618 (April 25, 1986).
On August 15, 2017, President Trump issued E.O. 13807, Establishing
Discipline and Accountability in the Environmental Review and
Permitting Process for Infrastructure Projects, which directed CEQ to
establish and lead an interagency working group to identify and propose
changes to its NEPA implementing regulations. 82 FR 40463 (Aug. 24,
2017). In response, CEQ issued an advance notice of proposed rulemaking
in 2018, 83 FR 28591 (June 20, 2018), and a notice of proposed
rulemaking in 2020, 85 FR 1684 (January 10, 2020), proposing broad
revisions to revise, update, and modernize the 1978 regulations. CEQ
promulgated its final rule on July 16, 2020. 85 FR 43304 (July 16,
2020).
On January 20, 2021, President Biden issued E.O. 13990, Protecting
Public Health and the Environment and Restoring Science to Tackle the
Climate Crisis, which revoked E.O. 13807 and directed agencies to take
steps to rescind any rules or regulations implementing it. 86 FR 7037
(Jan. 25, 2021). An accompanying White House fact sheet, published on
January 20, 2021, specifically identified the 2020 regulations for
CEQ's review for consistency with E.O. 13990's policy. Fact Sheet: List
of Agency Actions for Review (Jan. 20, 2021), https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.
After conducting that review, on June 29, 2021, CEQ issued an
interim final rule (IFR) extending by two years the 2020 rule's
September 14, 2021, deadline for agencies to propose changes to their
existing agency-specific NEPA procedures to make those procedures
consistent with the 2020 regulations. 86 FR 34154 (June 29, 2021).
Next, on October 7, 2021, CEQ issued a ``Phase 1'' proposed rule to
amend the 2020 regulations to restore three discrete portions of the
1978 regulations, 86 FR 55757 (Oct. 7, 2021), which CEQ finalized on
April 20, 2022. 87 FR 23453 (April 20, 2022).
On June 3, 2023, President Biden signed into law the FRA, which
included amendments to NEPA. On July 31, 2023, CEQ published a ``Phase
2'' proposed rule. 88 FR 49924 (July 31, 2023). On May 1, 2024, CEQ
finalized its Phase 2 rule, which incorporated many of its proposed
revisions, including those to implement the FRA's amendments. 89 FR
35442 (May 1, 2024).
On January 20, 2025, President Trump issued E.O. 14154, Unleashing
American Energy. 90 FR 8353 (Jan. 29, 2025). The Executive Order
revoked E.O. 11991, which had directed CEQ to issue NEPA implementing
regulations and required Federal agencies to comply with those
regulations. E.O. 14154 also directed CEQ to provide guidance on
implementing NEPA, propose rescinding CEQ's NEPA implementing
regulations within 30 days of the order, and to convene a working group
to coordinate agencies' revisions of their individual NEPA implementing
regulations or guidance for consistency. CEQ issued initial guidance on
February 19, 2025.\1\
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\1\ Council on Environmental Quality, Memorandum for Heads of
Federal Departments and Agencies, Implementation of the National
Environmental Policy Act, Feb. 19, 2025, https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-Memo-Implementation-of-NEPA-02.19.2025.pdf.
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In response to E.O. 14154, on February 25, 2025, CEQ issued an IFR
to remove its existing NEPA implementing regulations, as amended, 42
U.S.C. 4321 et seq. 90 FR 10610 (Feb. 25, 2025). In the IFR, CEQ
addressed its authority to issue binding NEPA implementing regulations
in the absence of the now-rescinded E.O. 11991. Specifically, CEQ cited
E.O. 11991 as authority in 1978 when it first issued its NEPA
implementing regulations and in subsequent amendments to those
regulations. CEQ determined that, in the absence of E.O. 11991, it was
appropriate to remove CEQ's regulations from the Code of Federal
Regulations,
[[Page 620]]
stating that, ``[i]n the absence of E.O. 11991, the plain text of NEPA
itself may not directly grant CEQ the power to issue regulations
binding on executive agencies'' and that therefore ``CEQ has concluded
that it may lack authority to issue binding rules on agencies in the
absence of now-rescinded E.O. 11991.''.\2\
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\2\ See 90 FR at 10613. As CEQ explained in the IFR and as CEQ
reaffirms here, none of the other statutory authorities cited in
E.O. 11991 furnishes CEQ with independent regulatory authority.
Section 309 of the Clean Air Act directs the EPA Administrator to
refer environmentally problematic actions to CEQ. 42 U.S.C. 7609.
But that provision merely reinforces CEQ's advisory role; it does
not transform CEQ into a regulatory agency. The same is true of the
Environmental Quality Improvement Act of 1970, which allows CEQ to
``assist'' agencies--but not to command them. 42 U.S.C. 4372(d).
Neither statute gives CEQ the power to independently issue NEPA
implementing regulations and binding on other agencies, much less
legislative rules with the force and effect of law.
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Publication of the IFR initiated a 30-day public comment period
that concluded on March 27, 2025. CEQ requested and encouraged public
comments on the rationale for the IFR that may inform CEQ's
decisionmaking. CEQ issued two corrections during the comment period,
one to clarify the comment deadline (90 FR 11221 (March 5, 2025)), and
another to add in a citation to the legal authority for rescinding the
regulations (90 FR 12690 (March 19, 2025)).
On May 29, 2025, the U.S. Supreme Court issued a landmark decision,
Seven County Infrastructure Coalition v. Eagle County, Colorado, 145 S.
Ct. 1497 (2025), in which it decried the ``transform[ation]'' of NEPA
from its roots as ``a modest procedural requirement,'' into a
significant ``substantive roadblock'' that ``paralyze[s]'' ``agency
decisionmaking.'' Id. at 1513 (quotations omitted). The Supreme Court
accordingly issued a ``course correction,'' directing lower courts to
give ``substantial deference'' to reasonable agency conclusions
underlying its NEPA process. Id. at 1513-14. Through the ``course
correction,'' the Court acknowledged, and sought to address the effect
of overly prescriptive judicial review of agencies' NEPA reviews on
``litigation-averse agencies,'' which had been ``tak[ing] ever more
time and [ ] prepar[ing] ever longer EISs [environmental impact
statements] for future projects.'' Id. at 1513.
With this Supreme Court decision, all three branches of government
at the highest possible levels--Congress, the President, and the
Supreme Court--have called for, authorized, and directed NEPA reform.
Finally, consistent with the directive in E.O. 14154 and guidance
from CEQ, numerous agencies have issued updates (either in the form of
IFRs, proposed rules, or updated guidance) to their NEPA implementing
procedures.\3\
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\3\ See Fed. Energy Regulatory Comm'n, Removal of References to
the Council on Environmental Quality's Rescinded Regulations, Final
Rule, 90 FR 29423 (July 3, 2025) to be codified at 18 CFR pt. 380
and 18 CFR pt. 385); Fed. Energy Regulatory Comm'n, Office of Energy
Products, Staff Guidance Manual on Implementation of the National
Environmental Policy Act (June 2025); Dep't of Energy, Revision of
National Environmental Policy Act Implementing Procedures, Interim
Final Rule, 90 FR 29676 (July 3, 2025) (to be codified at 10 CFR pt.
205 and 10 CFR pt. 1021); Dep't of Energy, National Environmental
Policy Act Implementing Procedures (June 30, 2025); Dep't of
Defense, National Environmental Policy Act Implementing Procedures
(June 30, 2025); Dep't of Defense, National Environmental Policy Act
Implementing Procedures: Appendix A Department of Defense
Categorical Exclusions (June 30, 2025); Dep't of the Air Force,
Removal of Environmental Impact Analysis Process (EIAP) Regulation,
Interim Final Rule, 90 FR 28021 (July 1, 2025) (to be codified at 32
CFR pt. 989); Dep't of the Army, Environmental Analysis of Army
Actions (AR 200-2), Interim Final Rule, 90 FR 29450 (July 3, 2025)
(to be codified at 32 CFR pt. 61); Dep't of the Navy, Recission of
Procedures for Implementing the National Environmental Policy Act
(NEPA), Interim Final Rule, 90 FR 29453 (July 3, 2025) (to be
codified at 32 CFR pt. 75); Dep't of the Army, Corps of Engineers,
Procedures for Implementing NEPA; Removal, Interim Final Rule, 90 FR
29461 (July 3, 2025) (to be codified at 33 CFR pt. 230); Dep't of
the Army, Corps of Engineers, Procedures for Implementing NEPA;
Processing of Department of the Army Permits, Interim Final Rule, 90
FR 29465 (July 3, 2025) (to be codified at 33 CFR pts. 320, 325,
333); Dep't of the Interior, Office of the Sec'y, National
Environmental Policy Act Implementing Regulations, Interim Final
Rule, 90 FR 29498 (July 3, 2025) (to be codified at 43 CFR pt. 46);
Dep't of the Interior, Dep't Manual, 516 DM 1--U.S. Department of
the Interior Handbook of National Environmental Policy Act
Implementing Procedures (June 2025); Dep't of the Interior, Dep't
Manual, 516 DM 1--U.S. Department of the Interior Handbook of
National Environmental Policy Act Implementing Procedures, Appendix
1: Actions Normally Requiring an Environmental Assessment or
Environmental Impact Statement (June 2025); Dep't of the Interior,
Dep't Manual, 516 DM 1--U.S. Department of the Interior Handbook of
National Environmental Policy Act Implementing Procedures, Appendix
2: Bureau Categorical Exclusions (June 2025); Dep't of the Interior,
Dep't Manual, 516 DM 1--U.S. Department of the Interior Handbook of
National Environmental Policy Act Implementing Procedures, Appendix
3: Implementation Guidance to Bureaus (June 2025); Dep't of
Agriculture, National Environmental Policy Act, Interim Final Rule,
90 FR 29632 (July 3, 2025) (to be codified at 7 CFR pt. 1 and 36 CFR
pt. 220); Dep't of Commerce, Econ. Dev. Admin., Amendment to
Environment Regulation, Final Rule, 90 FR 29417 (to be codified at
13 CFR pt. 302) (July 3, 2025); Dep't of Commerce, Econ. Dev.
Admin., EDA National Environmental Policy Act Implementing Directive
17.02-2 (revised June 30, 2025); Dep't of Commerce, Nat'l Oceanic
and Atmospheric Admin., Companion Manual for NOAA Administrative
Order 216-6A, Policy and Procedures for Compliance with the National
Environmental Policy Act and Related Authorities (June 30, 2025);
Dep't of Commerce, Nat'l Telecommunications and Info. Admin.,
Guidance on NTIA National Environmental Policy Act Compliance (June
2025); Dep't of Commerce, Nat'l Inst. of Standards and Tech.,
National Environmental Policy Act Procedures (June 30, 2025); Dep't
of Commerce, First Responder Network Authority, Procedures for
Implementing the National Environmental Policy Act (June 2025);
Dep't of Transportation, Procedures for Considering Environmental
Impacts, Notice, 90 FR. 29621 (July 3, 2025); Dep't of
Transportation, DOT Order 5610.1D, DOT's Procedures for Considering
Environmental Impacts (June 30, 2025); Dep't of Transportation, Fed.
Aviation Admin., Notice of Rescission of FAA Order 1050.1F,
Availability of FAA Order 1050.1G, Request for Comments, Notice, 90
FR 29615 (July 3, 2025); Dep't of Transportation, Fed. Aviation
Admin., Order 1050.1G--FAA National Environmental Policy Act
Implementing Procedures (June 30, 2025); Dep't of Transportation,
Fed. Highway Admin., Fed. Railroad Admin., Fed. Transit Admin.,
Revision of National Environmental Policy Act Regulations, Interim
Final Rule, 90 FR 29426 (July 3, 2025) (to be codified at 23 CFR pt.
771, 49 CFR pt. 264, and 49 CFR pt. 622); and Dep't of
Transportation, Nat'l Highway Traffic Safety Admin., Recission of
NHTSA's 1975 Procedures for Considering Environmental Impacts, 90 FR
29507 (July 3, 2025) (to be codified at 49 CFR pt. 520).
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II. Comments
CEQ received approximately 108,385 written submissions in response
to the IFR. The overwhelming majority of the comments (approximately
90,123) were campaign form letters sent in response to organized
initiatives and identical or very similar in form and content. CEQ
received approximately 457 unique public comments.
CEQ considered and is responding to substantive comments in this
final rule. CEQ is providing summaries of and responses to these
comments in the following section of this final rule. Both general
support and opposition to the IFR were expressed by unique comments
received. None of the comments received altered CEQ's conclusion that,
absent E.O. 11991, CEQ lacks authority to issue regulations binding on
other agencies. CEQ therefore adopts as final the interim rule without
changes.
General Comments on the Interim Final Rule
Comment: Several commenters expressed support for the IFR. These
commenters asserted that the IFR is required by E.O. 14154 and the
district court decision in Iowa v. CEQ,\4\ and is supported by the D.C.
Circuit's decision in Marin Audubon Society v. FAA. In particular, they
expressed support for a consistent, efficient, effective, and balanced
NEPA process that will allow for a clear focus on achieving NEPA's
[[Page 621]]
central goal of improving agency decisionmaking.
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\4\ On July 29, 2025, the U.S. Court of Appeals for the Eighth
Circuit issued an order vacating the district court's decision
pursuant to the Munsingwear doctrine. Given the IFR's prior removal
of 40 CFR part 1500 from the Code of Federal Regulations, this order
has no legal effect on the status of CEQ's NEPA implementing
regulations; CEQ's removal preceded the Eighth Circuit's order.
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Commenters also stated that CEQ's role under the statute is
consultative and that the President, in rescinding E.O. 11991 and
directing CEQ to rescind its regulations, returns CEQ to its statutory
origins and purpose. Specifically, a commenter noted that Congress
narrowly tasked CEQ with promulgating regulations for operation of the
Office of Environmental Quality Management Fund. The commenter stated
that this narrow grant of internal rulemaking authority to administer
the Fund confirms that Congress did not delegate to CEQ the power to
issue binding NEPA implementing regulations.
Commenters also stated that agencies, not CEQ, are in the best
position to establish NEPA implementing procedures and regulations that
fit their programs and authorities. These commenters explained that
without CEQ's rules, agencies will better be able to tailor the NEPA
process to their programs and authorities and will not be bound by a
one-size-fits-all process. These commenters stated that additional
agency flexibility will improve the efficiency and effectiveness of
NEPA reviews and expressed the desire that CEQ help agencies achieve
the goals for the reforms passed in the FRA, to continue transparency
in the NEPA process, and to conduct effective engagement with State,
local, and Tribal entities, and the public.
A commenter expressed general support for CEQ's NEPA reforms. The
commenter asserted that changes to NEPA in recent years have
contributed to regulatory uncertainty and resulting hesitancy among
project proponents and commended CEQ's efforts to modernize, simplify,
and accelerate NEPA reviews and support responsible development.
Several commenters stated that the Trump Administration should seek
lasting and durable change to modernize and improve the NEPA process.
Another commenter stated that NEPA has been used by opponents of
development to needlessly stifle many important infrastructure
projects. This commenter outlined examples of projects that the
commenter asserts have been delayed through the NEPA process and
specifically pointed to CEQ's regulations as unduly burdensome. This
commenter was supportive of NEPA reform efforts, including the IFR.
Response: CEQ acknowledges these supportive comments.
Comments Requesting Extension of the IFR Comment Period
Comment: Various commenters requested that CEQ extend the comment
period for the IFR. A commenter stated that CEQ's NEPA implementing
regulations have served to protect the human environment through a
coordinated Federal approach since 1978, and therefore asked CEQ to
extend its comment period by ``at least 90 additional days'' to allow
for additional analysis of the effects of the IFR and ability to
comment on the proposed course of action. Commenters stated that the
IFR changes the relationship between CEQ and Federal agencies and leads
to considerable uncertainty and harm. For these reasons, they asserted
that CEQ should provide the public with additional time for review and
comment. Commenters also stated that the provided opportunity to
comment is meaningless as the IFR was effective 15 days after the close
of the comment period. One commenter noted that the two clarifications
issued by CEQ during the comment period further limited the time the
public has to comment on the IFR. One commenter requested that CEQ hold
public hearings, as has been its past practice, during the comment
period. One commenter stated that guidance from the Office of
Management and Budget indicates that agencies should provide a 60-day
comment period for significant rules like this one.
Response: As described in the IFR, CEQ maintains that notice and
comment was not required because the rulemaking fell within various
exceptions to notice-and-comment rulemaking. See 5 U.S.C. 553(b).
Regardless, CEQ did provide notice and an opportunity to comment on the
IFR for a 30-day period before the IFR took effect. CEQ determined that
30 days was adequate because the scope of the IFR was limited to
rescinding the CEQ regulations. The IFR explicitly does not reconsider
the substance of CEQ's prior NEPA rulemakings, including the 2020 rule,
the Phase 1 rule, or the Phase 2 rule. The rescission action is not a
highly technical or complex issue that warrants a longer comment
period. Contrary to the assertion from commenters, OMB guidance does
not require a 60-day notice and comment period for significant
rulemakings. CEQ received more than 100,000 comments on its IFR, and
the volume and substantive content of the comments received indicate
that the public had an adequate opportunity to comment on the limited,
non-technical rescission action.
Comments Requesting an Extension of the IFR Effective Date
Comment: Several commenters stated that CEQ should extend the
effective date of the IFR for an additional period of time, ranging
from 30 to 90 additional days. These commenters suggested that the IFR
should not take effect until CEQ has fully considered comments on the
IFR and complied with additional requirements, including under NEPA
itself, the Endangered Species Act (ESA), and Executive Orders
regarding State and Tribal consultation. Some commenters requested that
CEQ suspend the effective date at least until coordinated agency-
specific NEPA implementing regulations have been adopted. Other
commenters stated that extending the effective date is consistent with
the President's direction to CEQ to ``propose rescinding'' its
regulations in E.O. 14154. Commenters also stated that setting an
effective date for the IFR 45 days after publication constrained CEQ's
ability to take a different course based on public comment.
Response: As explained in the IFR, CEQ determined that the most
appropriate means to accommodate both the President's direction and the
principles of public participation in regulatory action was to issue an
IFR with an opportunity for comment for 30 days and an effective date
45 days after publication. See 90 FR 10,614. These periods served to
provide fair notice to interested persons before the rule took effect,
while also allowing 30 days for public comment. Consistent with that
determination, CEQ is providing a response herein to comments received
on the IFR. Throughout this response to comments, CEQ explains why no
comments received alter its determination that it lacks authority to
issue NEPA implementing regulations binding agencies in the absence of
the now-rescinded E.O. 11991.
In E.O. 14154, the President revoked E.O. 11991 and directed CEQ to
``propose rescinding'' the CEQ NEPA implementing regulations. Together,
these directions necessitated that CEQ undertake a process to implement
a rescission of its regulations. Nonetheless, CEQ provided an
opportunity to comment on the rescission and delayed the effective date
of the rule until after the comment period closed, thus providing the
agency with the opportunity to determine if any comments altered its
position that it lacks authority to issue NEPA implementing regulations
binding agencies in the absence of the now-rescinded E.O. 11991. After
reviewing the comments, CEQ is issuing
[[Page 622]]
this final rule replacing the IFR and confirming the rationale for its
rescission. CEQ's actions are, therefore, consistent with the E.O., and
CEQ disagrees that the E.O. requires CEQ to extend the effective date.
Furthermore, because CEQ has determined that the rescission was
non-discretionary, CEQ was not required to conduct a NEPA review,
engage in ESA consultation, or consult with States or Tribes. Finally,
the rescission of CEQ's NEPA regulations did not effectuate any changes
to agency-specific NEPA implementing procedures. In its February 19,
2025, guidance, CEQ explained that agencies should continue to follow
their existing NEPA implementing procedures to the extent consistent
with the current statutory text and E.O. 14154. Moreover, as CEQ
explained in the IFR, while agencies update their procedures, they may
voluntarily continue to look to the version of CEQ's regulations that
was in effect at the time the agency action was completed when
defending against specific challenges to project-specific NEPA reviews.
As the E.O. directed, and consistent with 42 U.S.C. 4332(2)(B), CEQ is
coordinating with the agencies to establish or revise their NEPA
implementing procedures, but, given the continuing validity of the
agency-level NEPA implementing procedures in the interim, no purpose
would have been served in delaying the effective date of the IFR until
any revisions of those agency-level procedures were completed.
Comments Requesting Presidential or Congressional Action
Comment: Various commenters urged the President to reinstate CEQ's
rulemaking authority and the regulations revoked by the IFR. Absent
reinstatement of CEQ's authority to issue regulations binding on other
agencies, these commenters expressed a desire that Congress would
intervene and enact legislation expressly authorizing CEQ to issue
binding regulations.
Another commenter encouraged the Administration to work with
Congress to amend NEPA to provide clarity and consistency among agency
procedures to avoid uncertainty that comes with regulatory whiplash,
such as with other environmental rulemakings.
Response: CEQ acknowledges the comments and notes that any actions
that the President or Congress may take in the future are outside the
scope of the IFR and this rulemaking.
Comments on CEQ's Rationale for Removing Its NEPA Implementing
Regulations
Comment: Several commenters stated that CEQ failed to provide a
reasoned explanation for the reversal in its position that it has
authority to issue binding regulations. Other commenters stated, on the
other hand, that CEQ lacks legal authority to promulgate binding
regulations due to: (a) the lack of statutory authority to do so; and
(b) President Trump's rescission of E.O. 11991.
Response: As explained in detail throughout this rulemaking
process, in the absence of an executive order delegating rulemaking
authority to CEQ, the agency lacks independent statutory authority to
maintain its NEPA implementing regulations and binding agencies in
their implementation of NEPA.
NEPA itself provides only that CEQ has a consultative role. For
example, the statute instructs CEQ to ``consult[ ]'' with agencies on
the ``develop[ment] of methods and procedures'' to ``ensure that
presently unquantified environmental amenities and values may be given
appropriate consideration in decisionmaking along with economic and
technical considerations.'' 42 U.S.C. 4332(2)(B). And CEQ is directed
to ``develop and recommend to the President national policies to foster
and promote the improvement of environmental quality to meet the
conservation, social, economic, health, and other requirements and
goals of the Nation.'' 42 U.S.C. 4344(4). Absent from those provisions
is any delegation of rulemaking authority by Congress to CEQ related to
agencies' implementation of NEPA.
Consistent with that statutory framework, in 1970, President Nixon
issued E.O. 11514, which, among other things, instructed CEQ to
``[i]ssue guidelines to Federal agencies for the preparation of
detailed statements on proposals for legislation and other Federal
actions affecting the requirement, as required by section 102(2) of''
NEPA. 35 FR 4247, 4248 (Mar. 7, 1970). Then, in 1977, President Carter
issued E.O. 11991, which directed that CEQ ``[i]ssue regulations to
Federal agencies for the implementation of the procedural provisions''
of NEPA and instructed agencies to ``comply with the regulations issued
by'' CEQ unless otherwise inconsistent with their statutory
requirements. 42 FR 26967, 26967-68 (May 25, 1977).
However, E.O. 14154 rescinded E.O. 11991 in its entirety. 90 FR
8353, 8355 (Jan. 29, 2025). That Order instructed CEQ to: (1) ``provide
guidance on implementing'' NEPA; and (2) ``propose rescinding CEQ's
NEPA implementing regulations found at 40 CFR 1500 et seq.'' Id. Sec.
5(b). It also instructed CEQ to work with agencies as they revised
their own, agency-specific NEPA implementing procedures to ensure
consistency and conformity to the statute as amended in 2023 and,
consistent with applicable law, the policies of E.O. 14154. Sec. 5(c).
In other words, E.O. 14154 removed any Presidential delegation of
rulemaking authority, and returned CEQ to its Congressionally directed
role of consultation with agencies as they develop and maintain their
own methods to govern their environmental analysis under NEPA. See 42
U.S.C. 4332(2)(B); see also E.O. 11514, 35 FR 4247 (Mar. 7, 1970) (an
instruction contemporaneous with the passage of the statute).
Thus, while commenters are correct that CEQ promulgated regulations
in 1978, subject to repeated regulatory amendment thereafter, each
iteration of those regulations was based on the Presidential authority
and direction to promulgate regulations provided by Executive Order
11991. Without that E.O., CEQ has determined that it lacks authority to
promulgate regulations or to maintain the regulations that it had
historically promulgated.
Many commenters addressed the issue of whether President Carter had
authority to issue E.O. 11991 and delegate rulemaking authority to CEQ
in the first instance. That issue is beyond the scope of this
rulemaking. Irrespective of whether the President has the authority to
delegate rulemaking authority to CEQ to govern agencies' implementation
of NEPA, the President has rescinded that delegation of authority.
Thus, the agency determined it lacks authority to maintain its
regulations and must repeal them. CEQ adopts as final that action in
this rulemaking.
Comment: Several commenters stated that neither the D.C. Circuit
Court's opinion in Marin Audubon Society v. FAA nor the North Dakota
District Court's opinion in Iowa v. CEQ amount to a final or binding
judicial ruling that CEQ lacks rulemaking authority, and therefore that
CEQ did not need to rescind its regulations in view of these
authorities.
Response: As described above, CEQ's rescission of its NEPA
implementing regulations is based on the President's rescission of E.O.
11991 and consistent with his direction to CEQ to undertake a process
to rescind CEQ's NEPA implementing regulations. E.O. 14154,
[[Page 623]]
90 FR 8353 (Jan. 29, 2025). Thus, commenters' views regarding Marin
Audubon and Iowa v. CEQ are unrelated to the agency's discretion or
action to rescind its regulations here. CEQ therefore disagrees that
the binding or nonbinding nature of these cases affects its decision to
rescind its regulations.
Comment: Several commenters stated that CEQ has authority to issue
regulations binding on other agencies based on NEPA's mandate that CEQ
develop and recommend national policies to foster and promote the
improvement of environmental quality in 42 U.S.C. 4342 and 4344(4).
These commenters also pointed to CEQ's responsibility, set forth in 42
U.S.C. 4344(3), for overseeing the various programs and activities of
the Federal Government in light of the policy set forth in NEPA and
CEQ's responsibility to consult with agencies to identify methods and
procedures for complying with NEPA in 42 U.S.C. 4332(2)(B) as
provisions that confer rulemaking authority on CEQ. Commenters asserted
that Congress entrusted CEQ with flexibility to chart its
implementation of NEPA and that it would be up to the White House to
determine how best to proceed, whether through developing policies,
guidance, or regulations. Commenters asserted that, at the time of
NEPA's passage, there was little discussion of regulations because the
doctrine of rulemaking authority had not been fully articulated when
NEPA was originally enacted.
Response: None of the provisions of NEPA the commenters identify
grants regulatory authority to CEQ. Instead, those provisions are
consistent with CEQ's consultative role. CEQ's duty to ``recommend''
policies for the improvement of environmental quality, as in 42 U.S.C.
4342 and 4344(4), points to an advisory function rather than the power
to bind other agencies through the issuance of regulations. Likewise,
the directive to CEQ to ``review and appraise'' Federal Government
activities and ``make recommendations to the President with respect
thereto,'' in 42 U.S.C. 4344(3), exemplifies a consultative role in
support of the President's role in coordinating Executive functions.
And the statement in 42 U.S.C. 4332(2)(B) that ``all agencies of the
Federal Government shall . . . identify and develop methods and
procedures, in consultation with the Council on Environmental Quality''
to ensure appropriate consideration of environmental concerns gives
agencies, not CEQ, primary responsibility for implementing NEPA, with
CEQ functioning as an advisory body. Thus, the statutory language
commenters have identified does not contain language sufficient for CEQ
to find that it has independent regulatory authority via direct
statutory delegation. CEQ agrees with the commenters to the extent they
express that the President had authority to rescind E.O. 11991 and
chose to exercise that authority in E.O. 14154. CEQ, as a result, views
this action to rescind all iterations of its NEPA implementing
regulations as non-discretionary in the absence of that delegation of
Presidential authority.
Comment: Several commenters asserted that Congress has ratified
CEQ's authority to issue binding regulations by codifying certain
elements of CEQ's regulations in the NEPA amendments that were enacted
as part of the FRA. One commenter stated that congressional activities
since NEPA's passage constitute both ratification and acquiescence to
CEQ's exercise of rulemaking authority. The commenter points to a
Senate Committee on Environment and Public Works oversight hearing a
year after the regulations took effect. The commenter also pointed to
an oversight hearing on the regulation's impact on Rural Electric
Cooperatives, and asserted that Congress has in various other statutes
employed or otherwise relied on the existence of CEQ's regulations.
Response: In the FRA, Congress codified into statute certain
provisions from aspects of CEQ's regulations. Congress did not,
however, address the question of CEQ's authority to promulgate binding
regulations, even though it was indisputably aware of CEQ's past
practices.\5\ In fact, when Congress intended to grant rulemaking
authority to CEQ, it did so explicitly and in limited fashion; the 1984
amendments to the Environmental Quality Improvement Act established the
Office of Environmental Quality Management Fund and authorized CEQ,
serving as the Director of the Office of Environmental Quality, to
promulgate regulations and procedures for operation.\6\ This
Congressional practice demonstrates that, when Congress chooses to
confer regulatory authority to CEQ, it does so explicitly, which
undermines any argument that Congress implicitly granted CEQ regulatory
authority elsewhere in NEPA.
---------------------------------------------------------------------------
\5\ Congress has long been aware of this issue. Before the
Senate Environment and Public Works Subcommittee on Superfund,
Ocean, and Water Pollution in 1989, then-CEQ Chairman Alan Hill
urged Congress to provide CEQ with clear statutory authority to
regulate. Amending the National Environmental Policy Act, Hearing
before Subcomm. on Superfund, Ocean, and Water Protection, S. Hrg.
101-132 (June 1, 1989) (``I think the first thing--and the
legislation does touch on this--is granting statutory authority to
the Council to promulgate regulations. Now, the regulations guiding
the NEPA process for our Government are solely based on an
authorization from executive order, and those are always subject to
challenge.''); see also id. (Testimony of Michael McCloskey,
Chairman of Sierra Club) (urging Congress to empower CEQ by
codifying E.O. 11991 in law, which would in turn ``provide a
statutory basis for [the 1978 regulations]'').
\6\ See 42 U.S.C. 4375(c).
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Nor did Congress tacitly ratify CEQ's rulemaking authority. The
most that can be said is that Congress legislated against the backdrop
created by E.O. 11991's authorization and direction to CEQ to
promulgate NEPA implementing regulations, and that in the FRA in 2023,
Congress chose not to disturb that backdrop. Moreover, in passing the
FRA, Congress could not have ratified CEQ's authority to issue binding
regulations based on NEPA alone, given that E.O. 11991 was in effect
when that law was enacted. Since then, however, the President has
chosen to rescind E.O. 11991.
Comment: Several commenters assert that by cross-referencing
portions of CEQ's regulations in appropriations, infrastructure, and
other legislation (such as the Fixing America's Surface Transportation
Act of 2015 or the Water Infrastructure Improvements for the Nation Act
of 2016), Congress ratified CEQ's authority to issue binding
regulations.
Response: CEQ notes that, as commenters point out, various pieces
of legislation cross-reference portions of CEQ's regulations. For
example, the Fixing America's Surface Transportation Act of 2015 uses
the term ``environmental assessment,'' and defines it by reference to
CEQ's now-rescinded regulations. 42 U.S.C. 4370m(8). The Water
Infrastructure Improvements for the Nation Act of 2016 references CEQ's
rescinded NEPA implementing regulations as setting the standard for
environmental review by the Army Corps of Engineers. 33 U.S.C.
408(b).\7\
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\7\ Other statutes commenters have cited to this effect include
the FAA Reauthorization Act of 2024, Public Law 118-63, Section 230
(2024); the Building Chips in America Act of 2023, Public Law 118-
105, Section 2 (2024); the Hazard Eligibility and Local Projects Act
of 2022, Public Law 117-332, Section 2 (2023); the NDAA for FY 2023,
Public Law 117-263, Section 8134 (2022); the Infrastructure
Investment and Jobs Act, Public Law 117-58, Section 11301, 11312,
11318, 40106 (2021); the Consolidated Appropriations Act of 2021,
Public Law 116-260, Section 102 (2020); the Additional Supplemental
Appropriations for Disaster Relief Act of 2019, Public Law 116-20
Title XI (2019); the Consolidated Appropriations Act of 2019, Public
Law 115-245, Section 8141 (2018); the Bipartisan Budget Act of 2018,
Public Law 115-123, Section 21101 (2018); the Agriculture
Improvement Act of 2018, Public Law 115-334, Section 8611 (2018);
the FAA Reauthorization Act of 2018, Public Law 115-254, Section
1220 (2018); the Consolidated Appropriations Act of 2018, Public Law
115-141, Section 121 (2018); the Reinforcing Education
Accountability in Development Act of 2017, Public Law 115-56,
Section 7 (2017); the NDAA of 2017, Public Law 114-328, Section 341
(2016); the Consolidated Appropriations Act of 2016, Public Law 114-
113, Section 420 (2016); the Continuing Appropriations and Military
Construction, Veterans Affairs, and Related Agencies Appropriations
Act of 2017, Public Law 114-223, Section 145 (2016); the Water
Resources Reform and Development Act of 2014, Public Law 113-121,
Section 1005 (2014); the Supplemental Appropriations Act of 2013,
Public Law 113-2 Title VIII (2013); the Bureau of Reclamation Small
Conduit Hydropower Development and Rural Jobs Act, Public Law 113-
24, Section 2 (2013); the Moving Ahead for Progress in the 21st
Century Act of 2012, Public Law 112-141, Sections 1315-18 (2012);
the FAA Modernization and Reform Act of 2012, Public Law 112-95,
Section 213 (2012); the Omnibus Appropriations Act of 2009, Public
Law 111-8, Section 423 (2009); the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users of 2005,
Public Law 109-59, Section 6001 (2005); the Energy Policy Act of
2005, Public Law 109-58, Section 390 (2005); the Amendment of
Federal Food, Drug, and Cosmetic Act of 2004, Public Law 108-282,
Section 102 (2004); the Healthy Forest Restoration Act of 2003,
Public Law 108-148, Section 404 (2003); the Consolidated
Appropriations Resolution of 2003, Public Law 108-7, Section 403
(2003); the Wendell H. Ford Aviation Investment and Reform Act for
the 21st Century Act of 2000, Public Law 106-181, Section 803
(2000); the NDAA of 1996, Public Law 104-106, Section 2897 (1996);
the National Highway System Designation Act of 1995, Public Law 104-
59, Section 316 (1995); and the Omnibus Budget Reconciliation Act of
1987, Public Law 100-203, Section 5041 (1987). None of these
expressly ratify CEQ's authority to issue binding regulations.
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[[Page 624]]
However, none of these laws ratifies CEQ's authority to issue
binding regulations. Instead, these cross-references--at most--define
statutory terms or identify statutorily required processes by importing
those terms or processes from CEQ's regulations as they existed at the
time the legislation in question was enacted. Indeed, many simply refer
agencies to follow processes set forth in the NEPA implementing
regulations, like the use of categorical exclusions and different tiers
of environmental review. Notably, Congress chose to codify provisions
addressing precisely these NEPA procedural issues, among others, in the
2023 amendments--again, without amending the statute to delegate
rulemaking authority to CEQ. Further, each of these statutes came into
force while E.O. 11991 was in effect. Congress was therefore
legislating against the backdrop created by President Carter's
authorization and direction to CEQ to promulgate NEPA implementing
regulations. Therefore, at most, Congress acquiesced to the President's
authority to direct CEQ to promulgate NEPA implementing regulations.
Comment: Some commenters stated that while CEQ and the Executive do
have the authority to propose amendments and changes to rulemaking,
they do not have the authority to remove 40 CFR parts 1500 to 1508 in
their entirety. The commenters opined that by rescinding the
regulations CEQ fails to meet its responsibilities as established in 42
U.S.C. 4321 to 4327 (``[p]romote efforts that will prevent and
eliminate damage to the environment and promote public health''); 42
U.S.C. 4371 to 4375 (``[p]revent and control environmental
pollution''); and E.O. 11514 (``[e]valuate environmental and public
health impacts of proposed policies by the Federal Government;
[r]ecommend to the President policies that achieve more effective
protection and enhancement of environmental quality; [d]etermine the
need for new policies and programs for dealing with environmental
problems not being adequately addressed; [i]ssue guidelines to federal
agencies on how policies and other federal projects affect the
environment; [f]oster investigations, studies, surveys, research, and
analyses related to ecological systems and environmental quality, the
impact of new and changing technologies thereon, and means of
preventing or reducing adverse effects from such technologies'').
Another commenter stated that CEQ could not claim both that it may not
have the authority under the NEPA statute to issue such regulations and
that very same statute gives them the authority to issue this IFR. The
commenter stated that the E.O. 11991 could have been used to promulgate
the IFR before it was rescinded.
Response: Nothing in the provisions cited by the commenters
requires CEQ or any agency to issue or have regulations to effectuate
the mandates listed above. The authority CEQ cited when first
establishing its NEPA implementing regulations was the statute in
combination with E.O. 11991; the authority for repealing those
regulations is likewise the statute in combination with E.O. 14154.
Comment: One commenter stated that the President could not
unilaterally revoke an agency's authority to issue regulations binding
on other agencies under a particular statute. The commenter states that
a President cannot unilaterally revoke an authority given to an agency
by way of legislation and that CEQ itself admits it is unsure if
Congress has or has not done so in NEPA.
Response: In the absence of an executive order delegating
rulemaking authority to CEQ, the agency lacks authority to maintain its
NEPA implementing regulations and binding agencies in their
implementation of NEPA. Congress has not delegated, whether by
ratification or otherwise, any rulemaking authority to CEQ.
Comment: Several commenters asserted that the Supreme Court, as
well as lower courts, have affirmed CEQ's authority to promulgate
binding regulations. As one example, commenters noted that the Supreme
Court has stated that CEQ was ``established by NEPA with authority to
issue regulations interpreting it, [and] has promulgated regulations to
guide Federal agencies in determining what actions are subject to that
statutory requirement.'' Dep't of Transp. v. Pub. Citizen, 541 U.S.
752, 757 (2004).
Response: None of the court decisions commenters reference holds
that NEPA empowers CEQ to promulgate regulations binding on agencies.
Instead, the decisions variously state that CEQ's NEPA implementing
regulations are entitled to deference or bind agencies--but do not
examine the underlying source of CEQ's authority to issue regulations.
None of these court decisions therefore supports the proposition that
CEQ has authority to maintain those regulations after the rescission of
E.O. 11991, and none changes CEQ's view that it lacks rulemaking
authority after that rescission. First, the statement in Public Citizen
is likely dictum. Second, to the extent that the Supreme Court in
Public Citizen was observing that Congress intended CEQ to issue what
the Administrative Procedure Act refers to as ``interpretative rules,''
those are not equivalent to binding, ``legislative'' regulations.
Congress has not delegated authority to CEQ to issue legislative
regulations and the Supreme Court has not held otherwise. Third, the
Supreme Court in Public Citizen spoke of CEQ ``guid[ing]'' other
agencies. That role of issuing guidance is grounded in NEPA's text, 42
U.S.C. 4332(2)(B), requiring all agencies to ``consult'' with CEQ as
the agencies ``identify and develop methods and procedures'' to conduct
NEPA analyses. But that, again, is not a delegation by Congress of
regulatory authority to CEQ to bind agencies in their implementation of
NEPA.
Comment: Several commenters questioned whether rescission of CEQ's
NEPA implementing regulations appropriately recognizes and accounts for
their asserted reliance interests in a regulatory system that has been
in place since 1978. Some commenters asserted that States' interests
are specially implicated because they participate in the environmental
review process. The commenters opined that States have significant
resources devoted to NEPA implementation and the change would require
them to invest more resources in
[[Page 625]]
environmental review processes because staff assigned in each State
must familiarize themselves with the regulations of the individual
Federal agencies involved in each project.
Response: CEQ acknowledges commenters' concerns. However, CEQ does
not have the authority to maintain its NEPA implementing regulations
and binding agencies in their implementation of NEPA in the absence of
a delegation of authority from the President under the now-rescinded
E.O. 11991. As described elsewhere in this rulemaking, CEQ has
determined that, without delegated authority from the President, the
agency lacks authority to promulgate or maintain regulations
implementing NEPA and binding agencies in their implementation of NEPA.
The question of the validity of that now-rescinded delegation of
authority from the President is beyond the scope of this final rule,
because CEQ's conclusion is that, whatever its validity, its rescission
leaves CEQ without authority to maintain its NEPA implementing
regulations and binding agencies in their implementation of NEPA.
CEQ has considered whether any reliance interests constitute an
independent basis for CEQ to take a different action. In brief, CEQ has
concluded that they do not.
As an initial matter, CEQ's NEPA implementing regulations
established procedures that only bind and direct Federal agencies. They
do not impose fines or liability, confer discretionary benefits, or
alter third parties' substantive statutory rights. Nor could CEQ's
regulations have done so given that, as the Supreme Court emphasized in
Seven County, ``NEPA is a purely procedural statute.'' 145 S. Ct. at
1507. ``NEPA `does not mandate particular results, but simply
prescribes the necessary process' for an agency's environmental review
of a project[.]'' id. at 1510 (citations omitted). Thus, to the extent
that non-Federal entities have any reliance interests, those interests
relate to the environmental review accompanying a specific agency
action, and any pertinent agency specific processes concerning that
environmental review, rather than to CEQ's overarching regulatory
framework governing agencies' reviews. And, as discussed further below,
CEQ has taken steps to ensure that at the agency level, environmental
reviews remain predictable and efficient.
Moreover, rescission of CEQ's regulations does not alter an
agency's duty to comply with the statute. As discussed in the preamble
to the IFR, agencies maintain procedures that govern their
implementation of NEPA. CEQ's rescission did not effectuate the
revision or rescission of any agency's NEPA implementing procedures.
Indeed, in coordination with CEQ, some agencies have already updated or
replaced their procedures to incorporate the FRA amendments to NEPA,
the policies set forth in E.O. 14154 (as informed by CEQ's February 19,
2025 guidance), CEQ's rescission of its NEPA implementing regulations,
and the Supreme Court's decision in Seven County.\8\
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\8\ As of the date of this filing, over a dozen departments and
agencies have published new or revised NEPA implementing procedures
since CEQ's rescission became effective on April 11, 2025. For a
list of recently completed updated procedures, please see footnote
4.
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Through their individual implementing procedures, agencies tailor
NEPA implementation to their particular statutory authorities,
policies, and programs, resulting in improved efficiency. In addition,
CEQ ensures consistency across the Federal Government by consulting
with agencies on their NEPA implementing procedures, consistent with
section 102(2)(B) of NEPA, 42 U.S.C. 4332(2)(B), and section 5 of E.O.
14154.
While some commenters asserted reliance interests in the
predictable and efficient implementation of environmental reviews,
those interests are ultimately implicated by agencies' project-specific
NEPA reviews, not CEQ's recission of its NEPA implementing regulations.
As CEQ explained in the IFR, while agencies update their procedures,
they may voluntarily continue to look for guidance in the version of
CEQ's regulations that was in effect at the time an agency action was
completed when defending against specific challenges to NEPA reviews.
And as the February 19 guidance makes clear, an agency may use its
existing procedures--with any adjustments necessary for consistency
with the FRA amendments, the guidance, and E.O. 14154--to complete
ongoing environmental reviews while that agency is undertaking the
process of revising its own NEPA implementing procedures or
regulations. This approach is consistent with CEQ's longstanding
practice to direct agencies to rely on the CEQ regulations and agency
NEPA procedures that were in effect when an ongoing environmental
review was initiated, prior to changes in regulations or agency NEPA
procedures taking effect.\9\
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\9\ See 40 CFR 1506.12(a) (1978) (``These regulations shall
apply to the fullest extent practicable to ongoing activities and
environmental documents begun before the effective date. These
regulations do not apply to an environmental impact statement or
supplement if the draft statement was filed before the effective
date of these regulations. No completed environmental documents need
be redone by reasons of these regulations.''); 40 CFR 1506.13
(2020); 85 FR 43304, 43339 (July 16, 2020) (``Finally, CEQ proposed
to modify 1506.13, `Effective date,' to clarify that these
regulations would apply to all NEPA processes begun after the
effective date, but agencies have the discretion to apply them to
ongoing NEPA processes''); 40 CFR 1506.12 (2024); 89 FR 35442, 35530
(May 1, 2024) (``Section 1506.12 requires agencies to comply with
the regulations for proposed actions begun after the effective date
of the final rule. Agencies are in the best position to determine on
a case-by-case basis whether applying provisions of the revised
regulations to ongoing reviews will facilitate a more effective and
efficient process, and CEQ declines to limit agency flexibility in
this regard. Regarding potential conflict with existing agency
procedures, an agency's existing NEPA procedures remain in effect
until the agency revises its procedures consistent with 1507.3. . .
. Additionally, CEQ notes that the Fiscal Responsibility Act's
amendments to NEPA were effective upon enactment, so to the extent
the regulations implement provisions of the NEPA amendments, these
are applicable to ongoing reviews.'').
---------------------------------------------------------------------------
Moreover, CEQ has taken steps to ensure consistency and efficiency
across agency implementation of NEPA in the absence of CEQ's
regulations. CEQ first issued its February 19, 2025 guidance to provide
agencies with initial direction during the interim period before
agencies are able to update their procedures. CEQ also convened a
working group of select agencies and CEQ is continuing to work with
agencies consistent with its statutory role and the President's
direction in E.O. 14154 to coordinate the revision of agency-level
implementing procedures for consistency. CEQ is in the process of
publishing revised guidance informed by the discussions with the
working group and CEQ's consultation with agencies that have already
revised their NEPA implementing procedures. The revised guidance
includes a template for agency NEPA implementing procedures, providing
CEQ's view of an appropriate framework for agencies to use in revising
their procedures to ensure conformity to the statute as amended, to the
President's policies, and to the Supreme Court's Seven County opinion,
and to reflect the rescission of CEQ's NEPA implementing regulations;
agencies may further tailor this template to their particular programs
and authorities.\10\ These measures further ensure the continuation of
predictable and efficient implementation of environmental reviews.
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\10\ See 90 FR 47734 (Oct. 2, 2025) and https://ceq.doe.gov/guidance/guidance.html.
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Finally, with respect to State interests in maintaining CEQ's NEPA
implementing regulations, the rescission does not change the statutory
mandate for agencies to ensure a coordinated
[[Page 626]]
environmental review process with the States. See 42 U.S.C. 4332(2)(C),
4332(2)(G), 4332(2)(J), 4334, and 4336a. In addition, any States that
implement NEPA's requirements pursuant to other Federal law must
continue to adhere to the relevant Federal agency NEPA implementing
procedures, as applicable. Consistent with the statute, Federal
agencies have maintained their own individual NEPA procedures to
address their unique missions and programs. See 42 U.S.C. 4332(2)(B).
The need for States, stakeholders, and the public to become familiar
with them for the particular projects or actions at hand does not
change with CEQ's rule rescission.
Comment: Several commenters asserted that some States maintain
environmental review legislation or regulations that rely on CEQ's NEPA
implementing regulations to ensure a coordinated State and Federal
review process. The commenters opined that removing CEQ's NEPA
implementing regulations would make it more difficult for States to
rely on NEPA analyses for joint analyses under State and Federal law.
Another commenter, however, stated that CEQ's NEPA implementing
regulations are not needed because States already have comprehensive
environmental review procedures that are well-developed and closely
aligned with NEPA's core objectives, facilitating informed
decisionmaking, engaging the public, and identifying environmental
impacts and alternatives.
Response: CEQ will continue to work with agencies consistent with
the President's direction in E.O. 14154 and its statutory role to
ensure that the NEPA review process is efficient and, to the extent
possible, avoids duplication with other environmental review processes.
Moreover, rescission of CEQ's regulations has no effect on States'
ability to regulate State-level actions. While commenters did not
explain how these States relied upon CEQ's regulations specifically--
rather than on statutory requirements or agency-specific implementing
procedures--Federal agencies will continue to implement NEPA in an
orderly and efficient manner pursuant to their own NEPA implementing
procedures in a manner that takes into account other review processes
and avoids duplication.
Comment: Numerous commenters raised concerns about or offered
suggestions regarding the topics included in CEQ's February 19, 2025
guidance and potential future guidance, as well as suggestions for
processes to be included in individual agency procedures.
Response: While CEQ acknowledges the commenters' suggestions, the
content of individual agency procedures and any future CEQ guidance is
beyond the scope of this rulemaking.
Comment: A commenter stated that the IFR creates uncertainty. A
commenter stated that the removal of CEQ's implementing regulations is
inconsistent with what the commenter described as Congress' vision of
standardized, comprehensive procedures for environmental review with
meaningful public engagement. Another commenter stated that Congress,
federal courts, and the public have shared the understanding that CEQ's
NEPA implementing regulations bind agencies and ensure that agencies
adequately evaluate, consider, and share with the public the
environmental effects of projects and their alternatives. The commenter
stated that the removal of CEQ's regulations is counter to what the
commenter describes as this longstanding shared understanding and to
NEPA's text and purpose. More specifically, a commenter stated that
CEQ's rescission of its NEPA implementing regulations strips away
critical regulatory guardrails and undermines the very purpose of NEPA.
Another commenter stated that NEPA has saved taxpayers countless
dollars, protected wildlife, and ensured responsible Federal
decisionmaking.
Response: While these commenters described their own
interpretations of NEPA, none of them have substantiated the position
that Congress provided the authority to CEQ to establish binding
regulations for environmental reviews under NEPA in the absence of an
executive order. Rather, NEPA requires that agencies consult with CEQ
on their methods and procedures for implementing the statute. See 42
U.S.C. 4332(2)(B). As explained above, through this consultative role
and the provision of guidance, CEQ is working to ensure consistency
across the Federal Government regarding NEPA implementation.
Regardless of these asserted harms, CEQ has determined that it
lacks the discretion to alter its action. CEQ first promulgated its
NEPA implementing regulations in response to and citing as authority,
E.O. 11991, and consistently cited that E.O. as authority when revising
its implementing regulations. The President removed this authority when
he rescinded the E.O. and at the same time, directed CEQ to begin the
process of rescinding its NEPA implementing regulations. CEQ is issuing
this final rule to respond to comments and explain to the public that
it is reaffirming its decision to rescind its NEPA implementing
regulations as CEQ lacks the authority to maintain those regulations
after the revocation of E.O. 11991. Neither the IFR nor this rulemaking
alter agency obligations under the NEPA statute or remove any of the
benefits that environmental review may provide.
Comments on the Interim Final Rule Process
Comment: Several commenters disagreed that CEQ had good cause to
waive the Administrative Procedure Act (APA) notice and comment
requirements at 5 U.S.C. 553(b). These commenters stated that CEQ's IFR
did not establish that notice and comment is unnecessary,
impracticable, or contrary to the public interest. More specifically,
these commenters disagreed that CEQ had good cause to proceed with an
IFR to meet the 30-day deadline in E.O. 14154, and instead stated that
the President merely directed CEQ to ``propose rescinding'' its
regulations within 30 days. Commenters also stated that self-imposed
deadlines do not create good cause. Commenters also disagreed that CEQ
needed to act swiftly to reduce confusion stemming from recent judicial
decisions from the D.C. Circuit and district court in North Dakota
discussing CEQ's authority to promulgate regulations. These commenters
asserted that, rather than reducing confusion and supporting the public
interest, the IFR creates more confusion about how agencies will
undertake their NEPA review processes.
In addition, several commenters disagreed that CEQ's rule to
rescind the NEPA implementing regulations is an interpretative rule or
a rule of agency procedure that does not require notice and comment,
and stated that CEQ's underlying NEPA implementing regulations were not
and could not be so categorized.
Response: As CEQ explained in the IFR, CEQ proceeded via IFR in
response to E.O. 14154, which, among other things, revoked E.O. 11991,
the E.O. that provided CEQ with delegated authority to promulgate its
NEPA implementing regulations. Without E.O. 11991 and its delegation of
Presidential authority, CEQ was obligated to rescind its NEPA
implementing regulations. Regardless, the process by which CEQ
rescinded its NEPA implementing regulations is not procedurally invalid
because CEQ's IFR contained all of the elements of a notice of proposed
rulemaking as required by the APA.\11\ CEQ explained its position
[[Page 627]]
with sufficient detail to put the public on notice that it was
rescinding its NEPA implementing regulations and provided its rationale
along with an opportunity to comment before the IFR's effective
date.\12\ The public understood the action CEQ was taking and took
advantage of the opportunity to comment; CEQ received more than 100,000
comments on its IFR. Thus, while CEQ maintains that its IFR is subject
to the exceptions set forth in 5 U.S.C. 553(b), this final rule
represents the culmination of notice-and-comment rulemaking regardless
of the initial procedural basis for the IFR.
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\11\ 5 U.S.C. 553(b); see also Little Sisters of the Poor Saints
Peter & Paul Home v. Pennsylvania, 591 U.S. 657 (2020).
\12\ 5 U.S.C. 553(c) & (d).
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As explained in the response to other comments, no commenter has
identified any authority sufficient for CEQ to maintain its NEPA
implementing regulations now that E.O. 11991 has been rescinded. Thus,
CEQ is issuing this final rule to respond to comments and explain that
it is reaffirming its decision to rescind its NEPA implementing
regulations. This final rule therefore supersedes the IFR. As such,
even if CEQ were incorrect in initially proceeding via IFR with an
opportunity to comment, publication of this final rule has rectified
any earlier error given that the public had the opportunity to comment
prior to issuance of this final rule, thus rendering comments objecting
to the IFR process moot.
Comment: Several commenters stated that since CEQ promulgated its
NEPA implementing regulations by notice and comment rulemaking, CEQ was
legally obligated to follow the same process when rescinding those
regulations. These commenters stated that the President's direction in
E.O. 14154 also requires notice-and-comment rulemaking.
Response: CEQ disagrees that it was foreclosed from employing an
IFR because it previously promulgated its NEPA implementing regulations
through another process. As CEQ explained in its IFR, CEQ proceeded via
IFR in response to revocation of E.O. 11991. Without that E.O. and its
delegation of Presidential authority, CEQ was obligated to rescind its
NEPA implementing regulations. Moreover, CEQ disagrees that revocation
of its regulations required notice and comment simply because those
regulations were promulgated via notice and comment; CEQ's implementing
regulations were promulgated when E.O. 11991 was effective and the
agency took different procedural steps to carry out the Presidential
directives in place at the time the regulations were issued.
Comment: Several commenters stated that CEQ did not have good cause
to waive the 30-day period between issuing the IFR and the rule taking
effect.
Response: CEQ provided 45 days between publishing the IFR and the
effective date of the IFR. As CEQ explained in the prior comment
responses, CEQ offered an opportunity for public comment. This final
rule, including its response to comments submitted, now replaces the
IFR and is effective immediately.
Comments on the Consequences of the Interim Final Rule
Comment: Some commenters stated that the IFR, by removing CEQ's
NEPA implementing regulations, will result in increased litigation
concerning NEPA's requirements, potentially delaying projects and
increasing costs. Commenters also asserted that increased litigation
over NEPA's requirements will raise the potential for conflicting
judicial opinions, which will further complicate environmental review
processes.
Response: The asserted harm that commenters raise is speculative.
It is unclear whether or how the rescission will increase NEPA
litigation. Agencies will continue to implement NEPA, consistent with
their agency-specific NEPA implementing procedures, established in
consultation with CEQ.\13\ As agencies revise their NEPA implementing
procedures, CEQ will review them for consistency across the Government
and with NEPA's requirements, as required by E.O. 14154 and consistent
with CEQ's statutory role. Moreover, even if there were a risk of
increased litigation, any such increased risk would not justify
retaining the regulation because CEQ has determined that it lacks
discretion over the decision to rescind its NEPA implementing
regulations. E.O. 14154 rescinded E.O. 11991, which delegated CEQ the
authority to issue its regulations, and directed CEQ to propose
rescinding its regulations. CEQ is issuing this final rule to respond
to comments and explain to the public that it is reaffirming its
decision to rescind its NEPA implementing regulations as CEQ lacks the
authority to maintain those regulations. Finally, these asserted harms,
if they materialize, would stem from future agency action or would be
addressed by the content of agency implementing procedures. As
explained above, some agencies have recently revised their NEPA
implementing procedures consistent with E.O. 14154, while others are
currently under review or in development. However, the contents of such
agency procedures are beyond the scope of the IFR and this rulemaking.
---------------------------------------------------------------------------
\13\ See 42 U.S.C. 4332(2)(B).
---------------------------------------------------------------------------
Comment: Multiple commenters stated that the IFR's repeal of CEQ's
NEPA implementing regulations will create confusion for Federal
agencies and States applying CEQ's NEPA implementing regulations or
incorporating them into other law. A commenter stated that the IFR
undoes the 40-year history of stability and public review. Commenters
stated that removal of CEQ's regulations will impede environmental
reviews across the government, complicate coordination among agencies
conducting joint environmental reviews of activities requiring multiple
agency actions, and likely slow environmental review and permitting
timelines. These commenters also stated that the loss of CEQ's NEPA
implementing regulations will create uncertainty for Federal agencies
in how they carry out streamlining mechanisms (e.g., establishment of
categorical exclusions, tiered reviews, emergency reviews) in their
agency-specific NEPA processes.
Response: The asserted harm that commenters raise is speculative.
It is unclear whether or how the rescission will increase confusion.
Agencies will continue to implement NEPA, consistent with their agency-
specific NEPA implementing procedures, established in consultation with
CEQ.\14\ As agencies revise their NEPA implementing procedures, CEQ
will review them for consistency across the Government and with NEPA's
requirements, as required by E.O. 14154 and consistent with CEQ's
statutory role. Moreover, any confusion would not require a different
result. CEQ has determined that it lacks discretion over the decision
to rescind its NEPA implementing regulations. E.O. 14154 rescinded E.O.
11991, which delegated CEQ the authority to issue its regulations, and
directed CEQ to propose rescinding its regulations. CEQ is issuing this
final rule to respond to comments and explain to the public that it is
reaffirming its decision to rescind its NEPA implementing regulations
as CEQ lacks the authority to maintain those regulations. Furthermore,
CEQ notes that Congress's 2023 amendments to NEPA provided direction to
agencies on many of the issues raised here, specifically categorical
exclusions and programmatic reviews.
---------------------------------------------------------------------------
\14\ Id.
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As directed in E.O. 14154 and consistent with its statutory role,
CEQ is
[[Page 628]]
working directly with agencies as they revise their NEPA procedures.
Nothing in the IFR or this rulemaking abrogates the statutory
requirement that agencies consult with CEQ when revising or developing
their NEPA implementing procedures.
Accordingly, CEQ is working, to coordinate the revision of agency-
level implementing regulations for consistency, as directed by Congress
in section 102(2)(B) of NEPA, 42 U.S.C. 4332(2)(B), and the President
in E.O. 14154, and several agencies have taken action to revise their
NEPA implementing procedures. Therefore, commenters' concerns that
future NEPA reviews may be deficient absent the CEQ NEPA implementing
regulations are premature and speculative. Further, agencies can rely
on their existing NEPA implementing procedures while revising their
procedures, minimizing any uncertainty or inefficiency during that
process.
Comment: Multiple commenters asserted that agencies, States, and
stakeholders would experience increased delays and costs resulting from
the IFR and the confusion they assert that it creates over NEPA's
requirements, including confusion over how CEQ will fulfill its
consultative role under the statute. One commenter stated that the IFR
placed increased regulatory strain on States to evaluate impacts of
Federal action.
Response: CEQ's rescission did not constitute the revision or
rescission of any agency's NEPA implementing procedures. Many NEPA
implementing procedures had not been updated following the 2023 Fiscal
Responsibility Act's amendments to NEPA. This, as well as other
circumstances that may be unique to agencies' missions and programs,
was also a factor in agencies revising their NEPA implementing
procedures.
In its February 19, 2025, guidance, CEQ explained that agencies
should continue to follow their NEPA implementing procedures to the
extent consistent with the current statutory text and E.O. 14154.
Moreover, as CEQ explained in the IFR, while agencies update their
procedures, they may voluntarily continue to look for guidance to the
version of CEQ's regulations that was in effect at the time the agency
action was completed when defending against specific challenges to NEPA
reviews. Any States that implement NEPA's requirements pursuant to
other Federal law will continue to adhere to the relevant Federal
agency NEPA implementing procedures as they always have. As directed in
E.O. 14154 and consistent with its statutory role, CEQ is working with
agencies as they revise their NEPA procedures, consistent with its
statutory role under section 102(2)(B) of NEPA. 42 U.S.C. 4332(2)(B).
In addition, as noted earlier in the response to comments, concurrent
with this Final Rule, CEQ is publishing revised guidance informed by
the working group and CEQ's consultation with agencies that have
already revised their NEPA implementing procedures.\15\ These measures
further ensure the continuation of predictable and efficient
implementation of environmental reviews.
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\15\ See 90 FR 47734 (Oct. 2, 2025) and https://ceq.doe.gov/guidance/guidance.html.
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Comment: Many commenters stated that the rescission of the CEQ
regulations will have negative public health and environmental
consequences, including by curtailing public participation. Commenters
specifically expressed concerns that the IFR would decrease government
transparency and lead to less resilient infrastructure. Several
commenters also stated that some communities will disproportionately
face harm from the absence of CEQ's uniform NEPA implementing
regulations. Some State government commenters indicated that States in
particular have a vital interest in environmental protection and in
ensuring that Federal agencies take a ``hard look'' at the
environmental and public health consequences of their actions. These
commenters stated that they would experience negative environmental
outcomes without uniform NEPA implementing regulations.
Some commenters expressed concern about the effect on Tribal
engagement, asserting that Tribes rely on CEQ's regulations to ensure
that Federal agencies engage with Tribes on a government-to-government
basis during NEPA reviews. These commenters asserted that the
rescission of CEQ's NEPA implementing regulations raises the
possibility that Federal agencies will fail to satisfy statutory,
treaty, and constitutional obligations to Tribes when implementing
NEPA.
Response: The harm that commenters assert is speculative. It is
unclear whether or how the rescission will result in negative public
health and environmental consequences confusion. Agencies will continue
to establish NEPA implementing procedures in consultation with CEQ.\16\
CEQ will review agency procedures for consistency as required by E.O.
14154. CEQ has determined that it lacks discretion over the decision to
rescind its regulations; E.O. 14154 rescinded E.O. 11991, which
delegated CEQ the authority to issue its regulations, and directed CEQ
to propose rescinding its regulations. CEQ is issuing this final rule
to respond to comments and explain to the public that it is reaffirming
its decision to rescind its NEPA implementing regulations as CEQ lacks
the authority to maintain those regulations.
---------------------------------------------------------------------------
\16\ See 42 U.S.C. 4332(2)(B).
---------------------------------------------------------------------------
In addition, as explained in the IFR, ``the removal of CEQ's
regulations does not strip agencies of discretion to continue
following'' their existing NEPA implementing procedures, which
generally conform to the preexisting CEQ regulations. E.O. 14154
directs agencies to revise their NEPA implementing procedures
consistent with the E.O. and CEQ guidance. Neither the IFR nor this
rulemaking effectuates those revisions. Thus, commenters' concerns that
future NEPA reviews may be deficient absent the CEQ NEPA implementing
regulations are premature and speculative. Further, agencies can rely
on their existing NEPA implementing procedures while revising those
procedures, minimizing any uncertainty or inefficiency during that
process. Nothing in the IFR or this rulemaking abrogates the statutory
requirement that agencies consult with CEQ when revising or developing
their NEPA implementing procedures, as agencies have been doing.
Similarly, neither the IFR nor this rulemaking alters agencies'
duties towards Tribes. Regarding community impact, commenters' concerns
appear to stem from separate Presidential actions revoking \17\ E.O.
14096 \18\ and E.O. 12898.\19\ As explained elsewhere in this rule, the
IFR and this rulemaking explicitly do not reconsider the substance of
CEQ's prior NEPA rulemakings, including the 2020 rule, the Phase 1
rule, or the Phase 2 rule, and comments related to the substance of
those prior rulemakings are outside the scope of this action to rescind
CEQ's NEPA implementing regulations.
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\17\ E.O. 14148, Initial Rescissions of Harmful Executive Orders
and Actions, 90 FR 8237 (Jan. 28, 2025); E.O. 14173, Ending Illegal
Discrimination and Restoring Merit-Based Opportunity, 90 FR 8633
(Jan. 31, 2025).
\18\ E.O. 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All, 88 FR 25251 (Apr. 26, 2023).
\19\ E.O. 12898, Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR
7629 (Feb. 16, 1994).
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Comment: An individual commenter stated that the rescission of the
CEQ's NEPA implementing regulations will place significant burdens on
the 86
[[Page 629]]
Federal agencies that it asserts maintain NEPA implementing procedures.
The commenter indicated that revising these procedures will require
notice and comment rulemaking under the APA as well as interagency
review under E.O. 12866. According to the commenter, this ``demanding''
process will slow government decisionmaking, causing projects to
languish, with negative economic consequences.
Response: As explained in the IFR, ``the removal of CEQ's
regulations does not strip agencies of discretion to continue
following'' their existing NEPA implementing procedures, which
generally conform to the preexisting CEQ regulations. E.O. 14154
directs agencies to revise their NEPA implementing procedures
consistent with the E.O. and CEQ guidance, but ongoing reviews should
continue apace. Indeed, CEQ's February 19, 2025, guidance indicates
that ``[a]gencies should not delay pending or ongoing NEPA analyses
while undertaking these revisions,'' and encourages agencies to apply
their current NEPA implementing procedures, updated as necessary to
reflect the statute, until revisions are complete.
Comments on Agency-Specific NEPA Procedures
Comment: Several commenters suggested topics or processes for
agencies to include in agency-specific NEPA procedures to be developed
or revised in light of the IFR and rescission of CEQ's NEPA
implementing regulations.
Among other things, commenters suggested agency-specific or sector-
specific provisions and requested that agency procedures: include and
expand on NEPA efficiencies such as programmatic environmental reviews,
tiering, and categorical exclusions; limit alternatives analysis;
prescribe mechanisms for public engagement and scoping; clarify the
meaning of ``major Federal action;'' and fully implement the amendments
to NEPA from the FRA.
Some commenters also requested that agencies provide notice and
comment on agency procedures, pursuant to the APA, or that agencies
consider agency-specific factors when determining if notice and comment
is appropriate and reference the part of the APA that the agency used
to determine whether notice and comment is required.
Response: Comments about revisions to agency-specific NEPA
procedures are outside of the scope of this rulemaking. CEQ notes,
however, that consistent with its statutory role, E.O. 14154 directed
CEQ to issue guidance on implementing NEPA, which CEQ issued on
February 19, 2025. This guidance included multiple issues agencies
should consider when developing or revising agency procedures. In
addition, as noted earlier in the response to comments, CEQ is in the
process of publishing revised guidance, which includes a template for
agency NEPA implementing procedures, providing CEQ's view of an
appropriate framework for agencies to use in revising their procedures
to ensure conformity to the statute as amended, to the President's
policies, and to the Supreme Court's Seven County opinion, and to
reflect the rescission of CEQ's NEPA implementing regulations; the
agencies may tailor this template to their particular programs and
authorities. CEQ encourages commenters to direct their comments on
agency-specific procedures to the appropriate department and agency, as
applicable.
Comments on CEQ's Ongoing Role and Guidance
Comment: Multiple commenters provided suggestions regarding CEQ's
ongoing role in the NEPA process, including requests for CEQ to issue
guidance on particular topics of interest. These commenters stated that
CEQ has an important statutorily authorized advisory role within the
executive branch, including as a resource for Federal agencies in their
implementation of NEPA. These commenters stated that CEQ should
continue to ensure that agencies adopt practices and procedures to
implement NEPA that are consistent with NEPA, and requested that CEQ
continue to ensure that agency NEPA practices are consistent across the
Federal Government. A few commenters also requested that CEQ develop
resources to help the public and project sponsors understand the status
of agency NEPA procedures and ongoing projects, such as a dashboard or
website.
Response: Comments concerning CEQ's ongoing role in the NEPA
process are outside of the scope of this rulemaking. CEQ notes,
however, that consistent with its statutory role, E.O. 14154 directed
CEQ to issue guidance on implementing NEPA, which CEQ issued on
February 19, 2025. The E.O. also directed CEQ to convene a working
group to coordinate the revision of agency-level procedures for
consistency. Consistent with the E.O. and NEPA, CEQ will continue to
work with agencies to assist them in developing or revising their
procedures and to ensure consistent NEPA application across the Federal
Government. For example, as noted earlier in the response to comments,
concurrent with this Final Rule, CEQ is publishing revised guidance on
implementing NEPA. In addition, the President has directed CEQ to
establish a Permitting Innovation Center and, in consultation with the
National Energy Dominance Council and relevant permitting agencies, to
issue a Permitting Technology Action Plan for modernizing the
technology used for Federal permitting and environmental review
processes for infrastructure projects, including data-driven tools for
providing transparency and reducing timeline uncertainty for
environmental reviews.\20\ On June 5, CEQ's Permitting Innovation
Center launched the Categorical Exclusion Explorer (CE Explorer), a
technology tool that will increase transparency and streamline
environmental review and permitting processes by providing a digitized
public database of each Federal agency's existing categorical
exclusions established under NEPA.\21\
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\20\ Council on Environmental Quality, Permitting Technology
Action Plan, May 30, 2025. https://permitting.innovation.gov/CEQ_Permitting_Technology_Action_Plan.pdf.
\21\ The CE Explorer is available at: https://ce.permitting.innovation.gov/.
---------------------------------------------------------------------------
Comment: Numerous commenters generally supported the direction that
CEQ provided in its February 19, 2025, memorandum to agencies on NEPA
implementation, including the direction to agencies to revise their
agency procedures within 12 months and regarding NEPA compliance prior
to finalizing revisions to agency NEPA procedures. Several commenters
also supported the direction that agencies use the 2020 rule as the
basis for updates to agency procedures, while multiple other comments
disagreed with this direction, noting their prior concerns with the
2020 rule. A few commenters also specifically disagreed with certain
elements in the guidance, including the direction not to consider
cumulative effects or community effects.
Many commenters suggested topics for future detailed CEQ guidance
regarding NEPA implementation and agency procedures. Some commenters
requested that CEQ issue detailed guidance and model or template
regulations for agencies to follow in revising their NEPA implementing
procedures. Other commenters requested that CEQ issue guidance on
topics ranging from conducting effects analyses, including direct,
indirect, and cumulative effects; appropriate consideration of
community impact and greenhouse gas emissions; the scope of reasonable
alternatives; the appropriate level of NEPA review; the meaning of
``extraordinary complexity'' as applied
[[Page 630]]
to page limits; functional equivalence; narrowly tailoring the purpose
and need statement; effective communication with stakeholders; improved
interagency coordination and collaboration; role of cooperating
agencies; mitigation; and the definition of major Federal action, with
a focus on ``sufficient control and responsibility;'' among others.
Several of these commenters also requested that CEQ provide an
opportunity for public comment on any future guidance.
Some commenters requested that CEQ provide guidance to address
specific Tribal concerns and interests and expressed concern regarding
CEQ's direction in the February 19 memorandum that agencies
``prioritize efficiency and certainty over any other policy objectives
that could add delays and ambiguity to the permitting process.'' These
commenters urged CEQ to clarify in guidance and in the final rule that
efficiency and certainty do not supersede the Federal Government's
trust responsibility and legal obligations to Tribal Nations. One
commenter listed several specific elements for CEQ to consider for
guidance related to Tribal interests.
Response: Comments on CEQ's February 19, 2025 guidance are outside
the scope of this rulemaking, as are comments on potential future CEQ
guidance. However, CEQ notes that it will continue to work with
agencies as they revise their agency NEPA implementing procedures and
will share additional guidance as necessary and appropriate.
Comment: Some commenters requested that CEQ provide detail on the
formation of the interagency working group established under Section
5(c) of E.O. 14154. Some commenters suggested that this working group
include liaisons from the U.S. House of Representatives and the U.S.
Senate Committees involved in NEPA reforms as well as non-Federal NEPA
representatives.
Response: These comments are outside of the scope of this
rulemaking. CEQ notes, however, that, consistent with its statutory
role and as directed by the President through E.O. 14154, CEQ is
convening a working group to coordinate the revision of agency-level
implementing procedures for consistency.
Comments Regarding Compliance With E.O. 12866
Comment: One commenter indicated that the IFR constituted a
``significant regulatory action'' that required CEQ to prepare a cost-
benefit analysis. The commenter stated that due to OMB's determination
that the IFR qualifies as a ``significant regulatory action,'' CEQ must
prepare either a rigorous cost-benefit analysis as required by E.O.
12866 section 6(a)(3)(C) or, at a minimum, the cost-benefit analysis
required by section 6(a)(3)(B). The commenter requested CEQ to provide
a rationale for its decision not to prepare the cost-benefit analysis.
Response: The assessments required by E.O. 12866 section 6(a)(3)(C)
apply to actions that OIRA designates ``economically significant''
under E.O. 12866 section 3(f)(1). OMB determined that this action
rescinding CEQ's regulations is not ``economically significant,''
absent subsequent actions by agencies. As such, an E.O. 12866 section
6(a)(3)(C) assessment is not required for this rescission.
Comments Related to Regulatory Flexibility Act, E.O. 13272, and the
Small Business Jobs Act of 2010
Comment: The Small Business Administration (SBA) submitted comments
on the IFR, which it indicated reflect discussions with small
businesses from multiple sectors of the economy. SBA stated that the
small businesses generally supported the IFR, but noted some small
businesses were apprehensive about how individual agencies may fill the
void left by removing CEQ's NEPA implementing regulations. SBA
recommended that CEQ focus on reducing unnecessary confusion and
prioritizing consistency while agencies revise their NEPA procedures
and provided recommendations and examples from small businesses for how
CEQ could achieve this goal.
Response: CEQ acknowledges the input from SBA on behalf of small
businesses. As directed by the President through E.O. 14154, and
consistent with its statutory role under NEPA, CEQ is coordinating with
agencies as they review and revise their NEPA implementing procedures,
as appropriate, to ensure consistency. However, that process is beyond
the scope of the IFR and this rulemaking.
Comments on the Applicability of NEPA to the IFR
Comment: Several commenters indicated that CEQ should have
undertaken a NEPA review for its rulemaking action. The commenters
stated that the rulemaking is a major Federal action that may have
significant environmental effects. Specifically, commenters stated that
Federal agencies rely on CEQ's NEPA implementing regulations and that
repealing them will likely lead agencies to establish NEPA implementing
procedures with weaker, less environmentally protective requirements.
Commenters claimed these were effects of CEQ's action that the agency
should have considered under NEPA.
Response: In rescinding E.O. 11991, the President removed CEQ's
authority to promulgate NEPA implementing regulations and directed CEQ
to rescind its regulations. As a result, CEQ has determined that it
lacks the discretion to retain its regulations, and NEPA does not apply
to such nondiscretionary actions. See 42 U.S.C. 4336e(10)(B)(vii).
Moreover, even assuming that CEQ retained some discretion, the
rescission action did not require a NEPA analysis because it does not
have independent environmental effects. The IFR does not authorize any
specific agency activity or commit resources to any further agency
action. For this reason, CEQ has consistently taken the position that a
NEPA analysis is not required when agencies establish or update their
NEPA procedures to apply to future Federal actions.\22\
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\22\ CEQ's position here is longstanding as evidenced by 40 CFR
1507.3(b)(3) (2024); 85 FR 43304, 43353-43354 (July 16, 2020); 88 FR
49924, 49965 (July 31, 2023); 89 FR 35442, 35532 and 35552 (May 1,
2024). See also, Heartwood v. U.S. Forest Serv., 230 F.3d 947, 954-
55 (7th Cir. 2000) (finding that neither NEPA or the CEQ regulations
required the Forest Service to conduct an EA or an EIS prior to the
promulgation of its procedures creating a CE). Nonetheless, CEQ
voluntarily prepared a Special EA for its most recent revisions to
its NEPA implementing regulations.
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Comments Related to Federalism
Comment: A group of commenters representing State and local
jurisdictions stated that CEQ did not follow the State consultation
process mandated by E.O. 13132, Federalism. These comments state that
direct application of CEQ's regulations to Federal agencies has
federalism implications as does the rescission of CEQ's regulations.
For example, some State government commenters asserted that the
rescission of CEQ's NEPA implementing regulations would increase
burdens on States that have their own environmental review statutes.
These commenters speculate that the rescission of CEQ's uniform NEPA
implementing regulations would require the States to prepare more
documents under State environmental review laws because future federal
NEPA documents under the patchwork of agency NEPA implementing
regulations would be insufficient to satisfy State requirements.
Response: CEQ has determined that neither the IFR nor this
rulemaking has federalism implications as these
[[Page 631]]
rulemakings concern Federal agency implementation of NEPA. The decision
to rescind CEQ's NEPA implementing regulations does not impose specific
requirements on States or require States to change their behavior. In
addition, speculation regarding the inadequacy of future Federal
environmental documents under agency-specific procedures is outside of
CEQ's authority in this rulemaking as CEQ has determined that it lacks
discretion over the decision to rescind its NEPA implementing
regulations. Further, any concerns about the effect of the rescission
on State environmental review laws and processes are likewise outside
of scope; they are grounded first and foremost in the independent
actions of State legislatures and State administrative agencies.
Comments Related to Tribal Consultation
Comment: Various Tribes and organizations representing Tribal
interests requested formal government-to-government consultation
regarding the IFR before the IFR took effect. The commenters noted that
there was no communication or notification of the IFR before
publication. Another Tribal commenter disagreed with CEQ's statement
that the IFR does not require consultation with Tribal governments. The
commenter stated that the IFR incorrectly states that it is not a
regulatory policy with Tribal implications. This commenter and other
commenters indicated that the rescission of the CEQ regulations would
negatively affect how Federal agencies engage with Tribes through the
NEPA process. The commenters requested that CEQ pause the effective
date of the IFR until CEQ has completed government-to-government
consultation the Tribes.
Response: Pursuant to E.O. 13175, Consultation and Coordination
with Indian Tribal Governments (Nov. 6, 2000), agencies must consult
with Tribes before promulgating regulations with Tribal implications in
certain instances, none of which are triggered here. Any harms the
Tribes assert are speculative. Agencies will continue to implement
NEPA, consistent with their agency-specific NEPA implementing
procedures. As agencies revise their NEPA implementing procedures, CEQ
will review them for consistency across the Government and with NEPA's
requirements, as required by E.O. 14154 and consistent with CEQ's
statutory role. CEQ encourages agency coordination with Tribes on
actions that may affect Tribe resources. Although CEQ is not conducting
government-to-government consultation, it has considered the input from
Tribal governments and organizations representing Tribal interests
provided during the public comment period on the IFR, as reflected in
this rulemaking.
Comments Related to Endangered Species Act Applicability to the IFR
Comment: One commenter stated that CEQ was required to engage in
consultation with the National Marine Fisheries Service and the Fish
and Wildlife Service, as appropriate, under Section 7 of the ESA, which
requires each Federal agency to ``insure that any action authorized,
funded, or carried out by such agency is not likely to jeopardize the
continued existence of any endangered species or threatened species or
result in the destruction or adverse modification of'' any designated
critical habitat. The commenter stated that the IFR threatens
significant harm to endangered and threatened species throughout the
United States. The commenter stated that CEQ did not identify,
quantify, or consider the adverse impacts of repealing the NEPA
implementing regulations on a programmatic basis nor its impacts to any
specific threatened or endangered species or designated critical
habitat. The commenter stated that CEQ failed to even make a ``no
effect'' determination, noting that CEQ had done so with regard to
prior regulatory actions.
Response: CEQ has determined that Section 7 of ESA does not apply
to the IFR or this rulemaking. Neither the CEQ NEPA implementing
regulations themselves nor the action to rescind them would result in
adverse impacts on endangered or threatened species or critical
habitat. Rather, NEPA and its regulations provide procedures to ensure
that agencies account for the environmental impacts of their actions.
The commenter's alleged harm to species is speculative. To the extent
any harm occurs, it would result from future agency actions, not from
this recission action, which only removes requirements applicable to
Federal agencies regarding compliance with NEPA, which is a purely
procedural requirement. Moreover, CEQ has determined that its
rescission of its NEPA implementing regulations was non-discretionary,
and the ESA does not apply to non-discretionary actions.
III. Regulatory Analyses and Notices
A. Regulatory Procedures
Under the APA, notice and comment procedures are not required if an
action is an interpretative rule, a general statement of policy, or a
rule of agency organization, procedure, or practice. See 5 U.S.C.
553(b)(A). CEQ has determined that the CEQ rules were rules of ``agency
organization, procedure, or practice'' or, alternatively, interpretive
rules. Therefore, CEQ was not required to engage in a notice and
comment rulemaking process to remove them. Even if notice and comment
rulemaking were required, as explained in the IFR and elsewhere in this
final rule, CEQ has good cause to waive notice and comment because such
procedures are impracticable, unnecessary, and contrary to the public
interest. 5 U.S.C. 553(b)(B). Moreover, the public understood the
action CEQ was taking and took advantage of the opportunity to comment.
CEQ received more than 100,000 comments on its IFR. Thus, while CEQ
maintains that the IFR was subject to the exceptions set forth in 5
U.S.C. 553(b), this final rule represents the culmination of a
traditional notice-and-comment rulemaking regardless of the initial
procedural basis for the IFR.
B. E.O. 12866, Regulatory Planning and Review, and E.O. 13563,
Improving Regulation and Regulatory Review
E.O. 12866 provides that OIRA will review all significant rules.
E.O. 13563 reaffirms the principles of E.O. 12866, calling for
improvements in the Federal Government's regulatory system to promote
predictability, reduce uncertainty, and use the best, most innovative,
and least burdensome tools for achieving regulatory objectives. OMB
determined that this final rule is a significant regulatory action
under E.O. 12866, as supplemented by E.O. 13563.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, as amended, (RFA), 5 U.S.C. 601 et
seq., and E.O. 13272 require agencies to assess the impacts of proposed
and final rules on small entities. Under the RFA, small entities
include small businesses, small organizations, and small governmental
jurisdictions. An agency must prepare an Initial Regulatory Flexibility
Analysis (IRFA) unless it determines and certifies that a proposed
rule, if promulgated, would not have a significant economic impact on a
substantial number of small entities. 5 U.S.C. 605(b). This final rule
does not directly regulate small entities. Rather, the focus of CEQ's
NEPA implementing regulations and, consequently, of this rescission
rule, is on Federal agencies compliance with NEPA. Accordingly, CEQ
hereby certifies that this final rule will not have a significant
economic impact on a substantial number of small entities.
[[Page 632]]
D. Environmental Analysis
Section 111(10)(B)(vii) of NEPA excludes from the definition of
major Federal actions activities or decisions that are non-
discretionary and made in accordance with the agency's statutory
authority. CEQ has determined that, absent E.O. 11991, its rescission
is non-discretionary and, therefore, not subject to NEPA. Moreover, the
rescinded CEQ regulations did not require agencies to prepare a NEPA
analysis before establishing or updating agency NEPA implementing
procedures. While CEQ prepared environmental assessments for its
promulgation of the CEQ regulations in 1978, its amendments to 40 CFR
1502.22 in 1986, and its Phase 1 and Phase 2 regulations, in the
development of this final rule, CEQ has determined that the rule,
standing on its own, will not have a significant effect on the
environment because it will not authorize any specific agency activity
or commit resources to a project that may affect the environment.
Therefore, CEQ has not conducted a NEPA analysis of this rulemaking.
E. Executive Order 13132, Federalism
E.O. 13132 requires agencies to develop an accountable process to
ensure meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
Policies that have federalism implications include regulations that
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
This final rule is not a regulatory policy that has federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
F. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
E.O. 13175 requires agencies to have a process to ensure meaningful
and timely input by Tribal officials in the development of policies
that have Tribal implications. Such policies include regulations that
have substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. This final rule is not a regulatory
policy that has Tribal implications because it does not have
substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes. This rulemaking rescinds CEQ's
regulations binding Federal agencies on their implementation of NEPA.
Federal agencies will continue to have responsibility for implementing
NEPA, pursuant to their own internal procedures, as applicable.
Agencies will also continue to have responsibility for upholding
government-to-government relations with Tribes, pursuant to their own
procedures, including coordination on future actions, as applicable.
CEQ encourages agency coordination with Tribes on actions and
associated NEPA reviews that may affect resources of importance to
Tribal Nations. Although CEQ is not conducting government-to-government
consultation, it has considered the input from Tribal governments and
organizations representing Tribal interests provided during the public
comment period on the IFR, as reflected in this rulemaking.
G. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
Agencies must prepare a Statement of Energy Effects for significant
energy actions under E.O. 13211. This final rule is not a ``significant
energy action'' because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy.
H. Executive Order 12988, Civil Justice Reform
Under section 3(a) E.O. 12988, agencies must review their proposed
regulations to eliminate drafting errors and ambiguities, draft them to
minimize litigation, and provide a clear legal standard for affected
conduct. Section 3(b) provides a list of specific issues for review to
conduct the reviews required by section 3(a). CEQ has conducted this
review and determined that this final rule complies with the
requirements of E.O. 12988.
I. Unfunded Mandates Assessment
Section 201 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531) requires Federal agencies to assess the effects of their
regulatory actions on State, Tribal, and local governments, and the
private sector to the extent that such regulations incorporate
requirements specifically set forth in law. Before promulgating a rule
that may result in the expenditure by a State, Tribal, or local
government, in the aggregate, or by the private sector of $100 million,
adjusted annually for inflation, in any 1 year, an agency must prepare
a written statement that assesses the effects on State, Tribal, and
local governments and the private sector. 2 U.S.C. 1532. This final
rule applies to Federal agencies and would not result in expenditures
of $100 million or more for State, Tribal, and local governments, in
the aggregate, or the private sector in any 1 year. This action also
does not impose any enforceable duty, contain any unfunded mandate, or
otherwise have any effect on small governments subject to the
requirements of 2 U.S.C. 1531-1538.
J. Paperwork Reduction Act
This final rule does not impose any new information collection
burden that would require additional review or approval by OMB under
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects
Administrative practice and procedure; Environmental impact
statements; Environmental protection; Natural resources.
Katherine R. Scarlett,
Chairman.
0
For the reasons stated in the preamble, and under the authority of 42
U.S.C. 4321-4347; E.O. 14154, 90 FR 8353 (Jan. 29, 2025), the Council
on Environmental Quality's amendments to subchapter A of chapter V in
title 40 of the Code of Federal Regulations as published February 25,
2025, at 90 FR 10610 are adopted as final.
[FR Doc. 2026-00178 Filed 1-7-26; 8:45 am]
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