National Environmental Policy Act (NEPA) Reform

BACKGROUND: 

Over the past year, the regulatory apparatus surrounding the implementation of the National Environmental Policy Act (NEPA) has changed. On November 14, 2024, in Marin Audubon Society v. Federal Aviation Administration, the Court of Appeals for the District of Columbia ruled that the Council on Environmental Quality’s (CEQ) NEPA regulations are ultra vires or beyond the Council's legal authority.

On February 25, 2025, the Council on Environmental Quality (CEQ) issued an interim final rule in response to President Trump’s Unleashing American Energy Executive Order 14154. This rule removed existing federal regulations under P.L. 91-190, the National Environmental Policy Act (NEPA) and revoked CEQ’s authority to issue NEPA regulations. The rule took effect on April 11, 2025.

On May 29, 2025, the U.S. Supreme Court issued an 8-0 decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, that will reshape the requirements for NEPA environmental impact statements (EIS) federal agencies must put together for federal projects and the Court’s role in these matters.

The Seven County Infrastructure Coalition sought to construct a railroad line from Utah’s Uinta Basin to the national freight rail network connecting the oil-rich basin to refineries along the Gulf Coast. NEPA required the U.S. Surface Transportation Board to create an EIS that considered environmental effects and potential alternatives. The Board approved the rail line, and Eagle County and ecological organizations challenged the EIS for not fully considering impacts resulting from the development of the rail line. The D.C. Circuit found “numerous NEPA violations arising from the EIS” and vacated the Board’s final approval. 

The Supreme Court reversed the D.C. Circuit’s decision, holding that the Circuit had incorrectly interpreted NEPA to require consideration of other projects “separate in time or place” from the Uinta Basin Railway. The ruling finds that under NEPA, the EIS identifying environmental impacts and feasible alternatives are “purely procedural” and therefore are not required to consider other potential actions or projects that could arguably be related. The decision stated that courts should defer to agency decisions on what is required consideration, particularly for indirect effects from the project at hand beyond those required.

The Court’s decision indicates that NEPA environmental reviews challenged in court should be reviewed for full, detailed consideration of the environmental impacts of a proposed project, but courts should allow agencies to determine what falls within that scope. For counties, projects that require an EIS will encounter fewer legal challenges based on policy disagreements or objections to the scope of an EIS. As a result, frivolous lawsuits will be more difficult to file. 

The courts’ rulings, the executive order, and CEQ’s actions collectively reflect a clear intent to accelerate, streamline and simplify federal permitting procedures. While revisions to NEPA implementing procedures are ongoing through Executive Order 14154, federal agencies are encouraged to follow existing practices and procedures for implementing NEPA consistent with NEPA, E.O. 14154 and the February 19, 2025 memorandum for heads of federal departments and agencies related to NEPA implementation.

While change is afoot, counties can expect that these actions will reduce the regulatory burden, increase the pace and scale of NEPA analysis and provide easier pathways to project realization.  

BEST PRACTICES FOR COUNTIES: 

• Building strong relationships between counties and federal agencies ensures effective solutions to emerging challenges throughout any NEPA process.
• Counties are encouraged to engage early and build relationships with federal agencies during NEPA processes. It’s important for counties to understand the NEPA regulations specific to each agency.
• Counties may benefit from entering into formal agreements with lead federal agencies to clarify roles, expectations, decision-making authority, dispute resolution processes and areas of consensus.
• The National Center for Public Lands Counties (NCPLC) Knowledge Hub offers examples of Memoranda of Understanding (MOUs) to support these agreements.