On September 29, 2025, the Council on Environmental Quality (CEQ), a federal agency in the Executive Office of the President, issued new guidance to federal agencies on agency implementation of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. The guidance consists of two components: (1) a memorandum for the heads of federal departments and agencies that explains all of the recent legislative, judicial, and policy changes to NEPA and NEPA implementation (Guidance Memorandum); and (2) a template intended to help each federal agency ensure that their revised NEPA procedures reflect all of these new changes (Template).
CEQ Moves from Regulator to Facilitator
If this guidance had been issued last year, it very well could have been in the form of binding regulations. From 1978 through 2024, federal agencies fulfilled their NEPA responsibility to consider the reasonably foreseeable significant environmental effects of their actions by adhering to legally binding NEPA regulations issued by CEQ. That practice changed abruptly in November 2024, when, in Marin Audubon Soc’y v. FAA, the D.C. Circuit Court of Appeals invalidated 50 years of CEQ NEPA regulations, holding that CEQ lacked—and always lacked—authority to promulgate binding, legally enforceable regulations. Instead, the Court found that CEQ’s NEPA authority is limited to advisory functions only.
In apparent recognition of the D.C. Circuit’s decision, on January 20, 2025, the President issued Executive Order (E.O.) 14154, Unleashing American Energy, which, among other things, rescinded the Carter-era E.O. (42 FR 26967 (May 25, 1977)) that initially asserted CEQ’s authority to issue NEPA regulations. E.O. 14154 also directed CEQ to “propose rescinding CEQ’s NEPA Regulations[.]” Pursuant to this direction, and referencing Marin Audubon Soc’y, CEQ issued an interim final rule rescinding its NEPA regulations and explaining that CEQ’s role in NEPA implementation is limited to assisting federal agencies in meeting their NEPA obligations. This left the agencies to craft and implement their own NEPA procedures directly from the NEPA 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.”
CEQ Guidance Memorandum
The new CEQ guidance seeks to help agencies craft their new NEPA procedures, and highlights that these procedures should reflect the sweeping NEPA reforms called for recently “by all three branches of government at the highest possible level,” to “course correct” against an ever more burdensome and time consuming NEPA process that was never intended by Congress. The Guidance Memorandum emphasizes that these NEPA reforms—including the repeal of prescriptive CEQ regulations that went beyond the legislated requirements of NEPA—collectively defer to agency discretion with respect to how they choose to meet their “purely procedural” NEPA obligations.
For example, the Guidance Memorandum explains how the NEPA amendments contained in Section 321 of the 2023 Fiscal Responsibility Act (a.k.a., “the Builder Act”): (1) release agencies from the obligation to prepare NEPA documents for funding actions where agencies exercise limited control over the project; (2) expressly allow agencies to take advantage of other agencies’ NEPA categorical exclusions and favors the use of categorical exclusions over environmental assessments (EAs) wherever possible; and (3) only require consideration of alternatives to proposed actions that are technically and economically feasible for the project sponsor. These provisions arguably were never fully incorporated into CEQ’s 2024 NEPA “Phase 2” regulations, and remain largely unimplemented today.
The Guidance Memorandum also calls out the Builder Act’s NEPA document timing and page limits (75 pp. and 9 Mos. for an EA, 150 pp. and 2 years for an environmental impact statement (EIS). These limitations were imposed not because Congress intended to make NEPA document preparation more difficult, but to reflect Congress’s view that NEPA compliance is not intended to be burdensome or particularly time consuming. As the Supreme Court emphasized in the recent landmark NEPA case, Seven County Infrastructure Coalition v. Eagle County, Colorado, NEPA is only a “modest procedural requirement” . . . “[b]revity should not be mistaken for lack of detail. . . [a] relatively brief agency explanation can be reasoned and detailed; an EIS need not meander on for hundreds or thousands of pages.” As if to further emphasize the point, the Guidance Memorandum highlights that section 60026 of the subsequently enacted One Big Beautiful Bill Act (OBBB Act) requires agencies to provide a mechanism for project sponsors to pay a fee for even faster agency NEPA review than authorized under the Builder Act (6 months for an EA and 1 year for an EIS).
The Guidance Memorandum emphasizes other aspects of the Seven County Infrastructure Coalition opinion, in which the Supreme Court “decried the ‘transform[ation]’ of NEPA from its roots as ‘a modest procedural requirement,’ into a significant ‘substantive roadblock’” that ‘paralyze[s]’ agency decision making as ‘litigation-averse agencies’ ‘take ever more time and … prepare ever longer EISs for future projects.’ The Guidance Memorandum and Template reflect the Court’s acknowledgement that, contrary to previous CEQ NEPA regulations and other administratively-imposed requirements, an agency is not required to analyze environmental effects unless those effects are proximately caused by the proposed action (but-for causation is insufficient to require analysis). Agencies similarly are not required to analyze environmental effects of projects that are separate in time or place from the proposed action (i.e., the “cumulative effects” prescribed in previous CEQ regulations), or that would have to be initiated by a third party (e.g., third party “connected actions”). The Guidance Memorandum also highlights the Court’s admonition that it is the agencies, and not the courts, that determine how far to trace out the “so-called indirect” effects of a proposed action, and whether at all to consider effects of an action over which the agency lacks direct authority or control. The Guidance Memorandum additionally acknowledges the Court’s view that, by establishing deadlines and page limits for NEPA documents in the Builder Act, Congress now “strictly prohibits” the NEPA process from going on too long in time or in volume.
CEQ Template and New Agency NEPA Procedures
The Template is intended to ensure that all newly revised agency NEPA procedures incorporate these important concepts and requirements. Because the Template is only guidance, agencies are not required to incorporate it verbatim, or at all. However, the Guidance Memorandum reminds agencies that section 102(2)(B) of NEPA still requires agencies to develop their NEPA implementation procedures “in consultation with” CEQ.
Interestingly, most of the large NEPA agencies, including the Department of the Interior, Department of Agriculture, Department of Transportation, Department of Defense, Department of Energy, and U.S. Army Corps of Engineers, already issued their revised NEPA procedures in consultation with CEQ, and, to varying extents, utilized the contents of the new Template in doing so. However, because the agencies issued their revised NEPA procedures before the OBBB Act was enacted on July 4, 2025 (and several months before CEQ issued the instant guidance), these new agency NEPA procedures likely will need to be revised slightly to incorporate the new OBBB Act provision that allows project sponsors to pay for expedited NEPA review.
Unlike some of the previous agency NEPA implementing procedures, the new agency NEPA procedures are not binding regulations. This is important for preserving agency discretion to adjust NEPA implementation on a case-by-case basis to suit the needs of each project, rather than apply a bureaucratically inefficient one-size-fits-all approach to every project. Publishing nonbinding procedures instead of binding regulations also discourages litigation, which previously was based on enforcing an agency’s own binding NEPA regulations against it whenever the agency arguably deviated from the published regulatory text.
Culture Change and Opportunity
The NEPA “course correction” discussed in the CEQ guidance is a “return to roots” of sorts, and reinforces the foundational notion that NEPA is simply one tool that agencies utilize when making decisions that can involve any number of important equities beyond environmental considerations, such as economics, national priorities, public necessity, stakeholder concerns, project sponsor objectives, and implementation of other statutes. NEPA’s role is limited to informing a federal agency about the reasonably foreseeable significant environmental effects of a proposed action. As explained by the Supreme Court in Seven County Infrastructure Coalition, “[t]he ultimate question is not whether [a NEPA document] in and of itself is inadequate, but whether the agency’s final decision was reasonable and reasonably explained . . . [r]eview of [a NEPA document] is only one component of that analysis.” The CEQ guidance reflects this understanding of NEPA’s role in agency decision making, and accordingly makes it less burdensome for agencies to implement NEPA’s “modest procedural” requirements.
Despite the broad relaxing of previously rigid NEPA compliance procedures by Congress, the President, and the Supreme Court, and explicit guidance and assistance from CEQ on how agencies might reduce their NEPA compliance burden, current project sponsors may be surprised to find many agency NEPA practitioners still adhering to the old, administratively intensive NEPA requirements and policies that are now rescinded and/or superseded. Project sponsors should be aware how difficult it will be for federal agency NEPA practitioners, who have been administering agency NEPA responsibilities on a more or less consistent trajectory of increasing administrative burden for almost fifty years, to internalize the dramatic deviation from historical practice that recent legislation, Presidential action, and judicial decisions represent. An entire 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, and that likely will take some time—judicial admonitions, Presidential orders, and Congressional mandates notwithstanding.
That said, the current moment presents an opportunity for project sponsors who understand the legislative, administrative, and judicial changes to demonstrate to the agencies how they can utilize their newfound latitude to implement NEPA (including agency freedom to define the appropriate scope and depth of analysis), and leverage the new limits on the time and effort required for NEPA document preparation, to more sensibly conduct NEPA reviews in a way that suits the needs and timing of the project while satisfying the “modest procedural requirement” that is NEPA.
To learn how Trinity can help your facility and its projects navigate the evolving NEPA landscape, reach out to John Cossa and/or Karen Hanley
