The White House Council on Environmental Quality (CEQ) is expected to issue an interim final rule imminently that formally rescinds CEQ’s National Environmental Policy Act (NEPA) regulations and replaces them with non-binding guidance to federal agencies.

According to the Office of Management and Budget’s (OMB) website, CEQ submitted a rule entitled “Removal of National Environmental Policy Act Implementing Regulations” for final review on February 16, suggesting that it will be published in the coming days.

Although the text of the rule is not yet available, it presumably is in response to President Trump’s executive order “Unleashing American Energy,” issued on January 20. That order revoked CEQ’s authority to issue NEPA rules, which was first established in the Carter administration, and directed CEQ to issue guidelines on how NEPA is to be enforced by agencies.

Trump’s order itself is a response to a DC Circuit Court decision late last year, which found that CEQ lacks the statutory authority to issue binding regulations under NEPA.  In a 2-1 decision (which is being appealed), the court ruled that, although Congress gave agencies the authority to enforce NEPA, it did not give CEQ the authority to do so. (Instead, executive orders from Presidents Nixon and Carter effectively gave CEQ that authority.) In its decision, the court stated that “[n]o statutory language states or suggests that Congress empowered CEQ to issue rules binding on other agencies—that is, to act as a regulatory agency rather than as an advisory agency.”

These actions come after years of back-and-forth between successive presidential administrations about how to implement NEPA. In his first term, Trump issued new rules that ACRA and others argued drastically reduced the number of actions subject to the NEPA process and limited the types of effects agencies could consider under NEPA. Former President Biden revoked that rule and reinstated much of the original NEPA framework, while also signing legislation to reduce timelines. The new actions suggest that, at the very least, the NEPA rules will revert to the framework created in the first Trump administration, if not go further in limiting the use and scope of NEPA.

Impact on CRM – and Section 106

Any changes to NEPA’s rules could have impacts on how Section 106 of the National Historic Preservation Act (NHPA) is implemented because the two are often closely linked, particularly when agencies use the NEPA substitution process found in the Advisory Council on Historic Preservation’s (ACHP) 800 regulations to comply with Section 106.  ACRA will continue to speak up about efforts to change NEPA in ways that harm the Section 106 process and the ability of CRM firms to provide cultural resource services.

ACRA also has heard questions about whether the rescinding of CEQ’s NEPA regulations portends similar efforts to revoke the AHCP’s 800 regulations. However, there is a major difference between the two: Congress specifically gave the ACHP the authority to issue regulations; Congress never explicitly bestowed that authority to CEQ regarding NEPA. Therefore, the court’s decision last fall finding that CEQ lacks the statutory authority to issue regulations for NEPA does not apply to the ACHP’s Section 106 regulations.

That said, there are real concerns that last summer’s Supreme Court Loper Bright decision, which overturned the 40-year old Chevron decision giving federal agencies wide deference in issuing regulation without clear congressional intent, could lead to changes in the 800 regulations. As ACRA noted last summer when the Court issued Loper Bright, the long-term impacts of the decision on the regulations are unknown, but ACRA and its partners in the preservation community are closely tracking developments relating to Loper Bright and will work to address them as they arise.