CEI’s comment on NEPA removal regulations

Re:      Docket No. CEQ–2025–0002, RIN 0331-AA10

Removal of National Environmental Policy Act Implementing Regulations,

90 Fed. Reg. 10,610 (Feb. 25, 2025).

Dear Ms. Healy:

On behalf of the Competitive Enterprise Institute, I respectfully submit these comments to the Council on Environmental Quality (“CEQ”) concerning its interim final rule, Removal of National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 10,610 (Feb. 25, 2025). The Competitive Enterprise Institute is a non-profit public interest organization committed to advancing the principles of free markets and limited government. It has a longstanding interest in applying these principles in the rulemaking process.

Section 5 of Executive Order 14154 of January 20, 2025, “Unleashing American Energy,” revoked Executive Order 11991 of May 24, 1977, and ordered CEQ to propose rescinding CEQ’s National Environmental Policy Act (“NEPA”) regulations found at 40 C.F.R. § 1500 et seq.  Executive Order 11991 had ordered CEQ to issue regulations to federal agencies for the implementation of NEPA particularly with regard to environmental impact statements. Those regulations are codified at 40 C.F.R. § 1500 et seq.

In view of the revocation of Executive Order 11991 and the order to propose rescinding of the regulations generated by that executive order, CEQ is following a proper course of action, indeed the only course of action. CEQ no longer has a presidential directive supporting those regulations. Moreover, it never had authority to adopt and enforce them even when it had such a presidential directive.

The regulations provide, “All agencies of the Federal Government shall comply with the regulations in this subchapter.” 40 C.F.R. § 1507. The regulations contemplate judicial enforcement of compliance with their provisions. Id. § 1500.3(b). However, to be judicially enforceable, regulations must have the force and effect of law. Durden v. Colvin, 546 F. App’x 690, 690 (9th Cir. 2013). Regulations do not have the force and effect of law merely because an executive order authorized them. “[I]n order for such regulations to have the ‘force and effect of law,’ it is necessary to establish a nexus between the regulations and some delegation of the requisite legislative authority by Congress.” Chrysler Corp. v. Brown, 441 U.S. 281, 304 (1979).

A federal appellate court recently looked for a nexus between CEQ’s regulations and NEPA and found none. Marin Audubon Soc’y v. Fed. Aviation Admin., 121 F.4th 902, 912 (D.C. Cir. 2024), reh’g en banc denied, No. 23-1067 (D.C. Cir. Jan. 31, 2025). Two months ago, a district court came to the same ineluctable conclusion on CEQ’s regulatory authority: “The issue of CEQ authority is clear: NEPA gives CEQ authority to promulgate non-binding guidelines, but CEQ may not issue rules that have the force and effect of law.” Iowa v. Council on Envtl. Quality, No. 1:24-cv-00089, slip op. at *12 (D.N.D. Feb. 3, 2025). Even that overstates CEQ’s statutory authority. The only guidance that a statute authorizes CEQ to give is guidance on the use of existing documents in environmental reviews. The statute provides, “The Council on Environmental Quality may issue guidance to carry out this subsection.” 42 U.S.C. § 4370m-4(b)(1)(B). The subsection in question—subsection (b) of section 4370m-4, “Coordination of required reviews”—is entitled “Adoption, incorporation by reference, and use of documents;” subsection (1) below that is “Use of existing documents.” Aside from that authority, CEQ has statutory authority to make recommendations to the president, id. § 4344, and to make recommendations on permitting improvements. Id. § 4370m-1(c)(2).

Instead of functioning as a quasi-legislative body, CEQ “was intended to act primarily in an advisory capacity.” Scott C. Whitney, The Role of the President’s Council on Environmental Quality in the 1990s and Beyond, 6 J. Envtl. L. & Lit. 81, 88 (1991). The interim final rule returns CEQ to its intended function.

Cordially yours,

David S. McFadden

Attorney, Competitive Enterprise Institute