Course Correction: Recent Changes in NEPA Implementation

This article appears in the July 2026 issue of EM Magazine, a copyrighted publication of the Air & Waste Management Association (A&WMA)

Recent reforms by all three branches of government present a unique opportunity to reevaluate National Environmental Policy Act (NEPA) Implementation.

Dubbed the “basic national charter for protection of the environment,” the National Environmental Policy Act of 1969 (NEPA)¹ imposes a deceptively simple requirement on federal agencies: to consider the reasonably foreseeable significant environmental effects of their actions and alternatives to those actions before taking action.² Unlike other environmental statutes that govern infrastructure project permitting, ³ NEPA does not authorize the issuance of a permit or compel any environmental result. Instead, NEPA is a purely procedural, “look before you leap”⁴ statute intended to provide federal decision makers with environmental information about the activities they consider authorizing.

From 1978 through 2024, federal agencies complied with NEPA by following legally binding NEPA regulations issued by the Council on Environmental Quality (CEQ), an agency in the Executive Office of the President.⁵ The regulations required agencies to prepare an Environmental Impact Statement (EIS) to fulfill NEPA’s mandate to consider significant environmental effects and alternative courses of action, but also required much that was not expressly required in the statute, including:

1. preparing an Environmental Assessment (EA) to demonstrate that an action would not have significant environmental effects;
2. establishing Categorical Exclusions (CE) to exempt actions that typically do not have significant environmental effects;
3. analysis of “indirect” and “cumulative” effects, such as potential induced growth, non-environmental economic, social, and cultural effects, and effects of other projects; and
4. scoping and circulation of “draft” EISs for public review and comment.

In 1994, environmental justice (EJ) analysis was added to agencies’ NEPA obligations,⁶ and, beginning in the early 2010s, agencies began incorporating the social cost of carbon into NEPA documents.⁷ Agencies also had their own NEPA regulations, which were modeled after CEQ’s, but were frequently more detailed.

These extrastatutory requirements expanded the scope of NEPA to include analysis of virtually every aspect of a project’s design, deployment, and sociocultural merit.

According to the U.S. Supreme Court, litigation over these requirements transformed NEPA from the “modest procedural requirement” envisioned by Congress into a “substantive roadblock” to the deployment of infrastructure projects by forcing “litigation averse agencies to take ever more time. . . to prepare ever longer EISs” to appease every potential challenger.⁸ Over the course of approximately 50 years, EISs grew from about 10 pages⁹ to an average of 650 pages, with appendices of another 1,000 pages.¹⁰ By 2020, the mean preparation time for an EIS was 4.8 years,⁹ with litigation averaging an additional 4.2 years.¹¹

Though NEPA is the most frequently litigated environmental statute,¹² challenges rarely succeed on the merits, and have never succeeded in the U.S. Supreme Court. As observed by D.C. Circuit Judge LeCraft Henderson, delay, rather than winning, is opponents’ primary objective, as projects “face death by a thousand cuts” while litigants leverage NEPA’s public involvement and judicial review opportunities to inflict as much delay and financial pain on developers as possible.⁴

As recently echoed by the U.S. Supreme Court: “[a]ll of that has led to more agency analysis of separate projects, more consideration of attenuated effects, more exploration of alternatives to proposed agency action, more speculation and consultation and estimation and litigation. Delay upon delay, so much so that the process sometimes seems to border on the Kafkaesque. . . . Fewer projects make it to the finish line. Indeed, fewer projects make it to the starting line. Those that survive often end up costing much more than is anticipated or necessary, both for the agency preparing the EIS and for the builder of the project. . . A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development under the guise of just a little more process. . . . A course correction of sorts is appropriate to bring judicial review under NEPA back in line with the statutory text and common sense.”⁸

That course correction is now underway.

Course Correction

In 2023, Congress substantively amended NEPA for the first time with the Builder Act,¹³ which: (1) releases agencies from the obligation to prepare NEPA documents for funding actions where the agency exercises limited control over the funded activity; (2) authorizes agencies to take advantage of other agencies’ CEs and encourages CEs over EAs wherever possible; (3) requires consideration only of alternatives that are technically and economically feasible for the developer; (4) prioritizes applicant-prepared NEPA documents for agency adoption; and (5) imposes page and time limits on NEPA documents (75 pp. and nine months for EAs, 150 pp. and two years for EISs). In 2025, Congress provided for the payment of a fee to obtain an EA in six months and an EIS in one year.¹⁴

In November 2024, the D.C. Circuit Court of Appeals in Marin Audubon Soc’y v. FAA held that CEQ’s NEPA regulations were invalid because CEQ lacked authority to promulgate them.¹⁵ Therefore, CEQ’s regulations could no longer be used to evaluate agency compliance with NEPA. In apparent recognition of Marin Audubon, in January 2025, the President issued Executive Order (E.O.) 14154, Unleashing American Energy, which rescinded the Carter-era E.O. that asserted CEQ’s regulatory authority,¹⁶ and directed CEQ to propose rescinding its NEPA regulations.¹⁷ In 2025, CEQ rescinded the NEPA regulations and explained that CEQ’s role is limited to helping federal agencies meet their statutory NEPA obligations.¹⁸ This allowed each agency to craft its own NEPA procedures directly from the statute, consistent with the E.O.’s further direction that, “in all federal permitting adjudications or regulatory processes,” agencies should “adhere to only the relevant legislated requirements for environmental considerations and any considerations beyond these requirements are eliminated.”¹⁶ This means that agencies should eliminate the non-statutory procedures that have accreted around NEPA implementation over time, including scoping and publishing draft EAs for public comment, circulating draft EISs for public comment, and time-consuming pre-NEPA processes. Agencies also are no longer required to consider the social cost of carbon or EJ, as those policies also are rescinded.¹⁹

The U.S. Supreme Court subsequently issued its landmark decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, holding that NEPA did not require the National Transportation Safety Board to analyze the environmental effects of upstream oil development or downstream oil refining that could be spurred by the agency’s approval of an 88-mile-long railway line connecting Utah’s oil-rich Uinta Basin to the national freight rail network.⁸ In reaching its decision, the Court reduced the scope of environmental effects agencies are required to analyze under NEPA, explaining that:

1. Each agency has discretion to determine how far to trace out the effects of a proposed action to be analyzed in a NEPA document;
2. Agencies are not required to analyze environmental effects unless they are proximately caused by the proposed action (the customary “but-for” test is insufficient to compel analysis); and
3. Agencies are not required to analyze environmental effects from other projects that are separate in time, or separate in place, or that would have to be initiated by a third party, or that fall outside the scope of the agency’s regulatory authority (e.g., “cumulative effects” and third-party “connected actions”).⁸

Most of the major federal agencies have issued new NEPA procedures that reflect these changes to varying degrees.²⁰ Most are nonregulatory, which preserves agency discretion to adjust NEPA implementation to suit the needs of each project without risk of regulatory-based litigation. CEQ also has issued guidance to agencies to help them develop their new NEPA procedures. ²¹

Culture Change and Opportunity

Together, these NEPA reforms are a “return to roots” that reaffirms NEPA as only one tool among many for informing agency decisions, and not a vehicle for litigating every project related issue. Despite this, developers may be surprised to find agency NEPA practitioners still adhering to NEPA Course Correction the old, administratively intensive NEPA requirements and procedures that have been expressly rescinded. Developers’ NEPA advisors also continue to default to process expansion in the name of risk reduction, but which, in practice, can provide a target-rich environment for would-be litigants to cause additional delay. Developers should be aware how difficult it will be for NEPA practitioners, who have been administering agency NEPA responsibilities on a consistent trajectory of increasing administrative burden for almost fifty years, to internalize the dramatic deviation from historical practice that the recent NEPA reforms represent. An institutionalized culture built around “serving NEPA,” rather than implementing NEPA in a way that facilitates efficient and reasoned agency decision making, will have to change.

This moment presents an opportunity for developers to demonstrate to agencies how NEPA can be implemented with discipline, and how expanded agency latitude to define the appropriate scope of analysis can be leveraged to align environmental review with project needs while meeting NEPA’s “modest procedural requirement.”⁸

Author: John Cossa, Managing Consultant

References

1. 42 U SC §§ 4321-4370j.
2. 42 U SC § 4332(2)(C).
3. See Clean Air Act, 42 US C §§ 7401-7675; Clean Water Act, 33 USC §§ 1251-1389; Resource Recovery and Conservation Act, 42 US C §§ 6901-6992k; Endangered Species Act, 16 U SC §§ 1531-1544.
4. Appalachian Voices v. FERC, 139 F.4th 903, 921 (D.C. Cir. 2025) (J. LeCraft Henderson, concurring).
5. 40 CFR §§ 1501-1508, 2024; rescinded by C EQ, Removal of National Environment al Policy Act Implementing Regulations, Interim Final Rule, 90 Fed. Regist. 10610, Feb 25, 2025, and CEQ, Removal of National Environmental Policy Act Implementing Regulations, Final Rule, 91 Fed. Regist. 618, Jan 8, 2026.
6. See Executive Order (E.O.) 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 Fed. Regist. 7629, Feb 16, 1994.
7. Cf. High Country Conservation Ass’n v. U.S. Forest Serv., 52 F. Supp. 3d 1174 (D. Colo. 2014) (explaining how agencies had begun incorporating the 2010 social cost of carbon in their NEPA documents).
8. Seven County Infrastructure Coalition v. Eagle County, Colo., 145 S. Ct. 1497, 1507, 1513 (2025).
9. Dourado, Eli. Much More than You Ever Wanted to Know About NEPA. The Center for Growth and Opportunity at Utah State University Oct 20, 2022; https://www.the cgo.org/benchmark/much-more-than-you-ever-wanted-to-know-about-nepa/ (Referenced in Apalachin Voices, 139 F. 4th at 923).
10. CEQ, Length of Environmental Impact Statements (2013-2018), June 12, 2020; https://perma.cc/9UWN-MPF7 (referenced in Apalachin Voices, 139 F. 4th at 923).
11. Ciappa, Nikki, Ted Nordhaus, Alex Trembath, and Elizabeth McCarthy. Understanding NEPA Litigation: A Systematic Review of Recent NEPA-Related Appellate Court Cases. Breakthrough Institute Feb 2025, p 2; https://perma.cc/V7U D-YYPB (referenced in Apalachin Voices, 139 F. 4th at 923).
12. Congressional Research Service, National Environmental Policy Act: Judicial Review and Remedies, Sept 22, 2021, p 1 (referenced in Apalachin Voices, 139 F. 4th at 923).
13. Fiscal Responsibility Act, Sec. 321, Pub. L. No. 118-5, 137 Stat. 10, 38, Jun 3, 2023.
14. One Big Beautiful Bill Act of 2025, Sec. 60026, Pub. L. No. 119-21, 139 Stat. 72, 157, Jul 4, 2025.
15. 121 F.4th 902 (D.C. Cir. 2024).
16. E.O. 11991, Relating to the Protection and Enhancement of Environment al Quality, 42 Fed. Regist. 26967, May 24, 1977.
17. 90 Fed. Regist. 8353, Jan 29, 2025.
18. CEQ, Removal of National Environmental Policy Act Implementing Regulations, Interim Final Rule, 90 Fed. Regist. 10610, Feb 25, 2025; C EQ, Removal of National Environmental Policy Act Implementing Regulations, Final Rule, 91 Fed. Regist. 618, Jan 8, 2026.
19. See note 16 supra, at 8354 (rescinding E.O. 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Regist. 7037, Jan 20, 2021); E.O. 14148, Initial Rescission of Harmful Executive Orders and Actions, 90 Fed. Regist. 8237, 8240, Jan 28, 2025 (rescinding E.O. 14096, Revitalizing Our Nation’s Commitment to Environment al Justice for All, 88 Fed. Regist. 25251, Apr 21, 2023); E.O. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, 90 Fed. Regist. 8633, 8634, Jan 31, 2025 (rescinding E.O. 12898, Fe deral Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 Fed. Regist. 7629, Feb 16, 1994).
20. See U.S. Dep’t of the Interior, National Environmental Policy Act Implementing Procedures, 516 DM 1, Feb 2006, DOI Handbook of NEPA Procedures; https://www.doi.gov/media/document/doi-handb ook-nepa-proce dures (se e also https://www.doi.gov/oepc/national-environmental-policy-act-nepa); U.S. Dep’t of Agriculture, National Environmental Policy Act, Final Rule, 91 Fed. Regist. 17062, Apr 3, 2026; U.S. Dep’t of Transportation, Procedures for Considering Environmental Impacts, Notice of Availability, 90 Fed. Regist. 2962, July 3, 2025; U.S. Dep’t of Defense National Environmental Policy Act Implementing Procedures; https://www.denix.osd.mil/nepa/denix-files/sites/55/2025/06/DoD-N EPA-Procedures-FINAL.pdf (see U.S. Dep’t of Defense, Dep’t of Defense Implementation of the National Environmental Policy Act, Public Notice, 90 Fed. Regist. 27857, June 30, 2025); U.S. Dep’t of Energy, Revision of National Environmental Policy Act Implementing Procedures, Interim Final Rule, 90 Fed. Regist. 29676, July 3, 2025; U.S. Army Corps of Engine ers, Procedures for Implementing NE PA; Processing of Department of the Army Permits, Interim Final Rule, 90 Fed. Regist. 29465, July 3, 2025.
21. CEQ, Memorandum for Heads of Federal Departments and Agencies re Implementation of the National Environmental Policy Act, Sept 29, 2025, Agency NEPA Implementation Guidace [sic]; https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Agency-N EPA-Implementation-Guidance.pdf.