CEI celebrates agency giving up power

Even if it becomes commonplace, we should pause in wonderment whenever an agency repeals its own regulations and relinquishes power, whether voluntarily or not. And so it was that the Council on Environmental Quality (CEQ) issued an interim final rule to remove its regulations implementing the National Environmental Policy Act of 1969 (NEPA) effective April 11, 2025. The Council also requested comments on all aspects of the interim final rule.

CEI submitted a comment expressing its position that here, as always, an agency ought not to be exercising powers it doesn’t have.

NEPA created CEQ and gave it various advisory duties. Its mission creep accelerated under the Carter administration with the issuance of Executive Order 11991, which directed CEQ to issue regulations binding federal agencies particularly with regard to the environmental impact statements that NEPA requires. In an amicus brief submitted to the US Supreme Court last September, CEI pointed out that “Congress did not assign CEQ any authority to issue regulations that bind other agencies.”

Lower courts soon thereafter began to recognize that, as our amicus brief put it, alluding to a fable, “The emperor has no clothes.” So did the Trump administration. Section 5 of Executive Order 14154 of January 20, 2025, “Unleashing American Energy,” revoked Executive Order 11991 and ordered CEQ to propose rescinding CEQ’s NEPA regulations.

In accordance with Executive Order 14154, CEQ issued its interim final rule removing the regulations. CEI’s comment on the interim final rule noted that CEQ’s regulations assert that all agencies of the federal government must comply with them, and the regulations contemplate judicial enforcement of compliance with their provisions. But in order to adopt judicially enforceable regulations, an agency must have received regulatory authority from Congress. That did not happen here.

The absence of regulatory authority in NEPA cannot be seriously questioned. NEPA authorized CEQ to make recommendations to the president and others. It can issue guidances, but even that authority is narrow. The only guidance that CEQ is authorized by statute to give is guidance on the use of existing documents in environmental reviews.

CEQ never had authority from Congress to issue regulations. Now it no longer has the dubious authority of an executive order. The interim final rule returns CEQ to its intended, advisory function.