Comment on Interim Final Rule, Removal of National Environmental Policy Act Implementing Regulations
Dear Council on Environmental Quality:
I appreciate the opportunity to comment on the Council on Environmental Quality’s (CEQ) interim final rule removing its National Environmental Policy Act (NEPA) regulations (Docket No. CEQ–2025–0002). I am writing in support of this action, as I believe it represents an important step to address the significant delays and excessive litigation that have long plagued the federal environmental review process.
Background on the Rulemaking
As CEQ explains, Executive Order (E.O.) 14154, Unleashing American Energy, rescinded E.O. 11991—the Carter-era order that originally directed CEQ to promulgate binding, government-wide NEPA regulations. CEQ has concluded that, in the wake of E.O. 11991’s revocation, it is prudent to remove 40 C.F.R. parts 1500–1508 from the Code of Federal Regulations. This interim final rule thus withdraws the CEQ regulations that many agencies have long used as a baseline for NEPA compliance.
Support for Removal of the Regulations, with Caveats
There has been debate about whether CEQ’s regulations were within CEQ’s legal authority. On the one hand, these were not legislative rules that mandate or restrict behavior on the part of private parties. Rather, they functioned as rules of agency procedure within the executive branch, which the president could legitimately direct CEQ to issue and which are binding on executive agencies. Additionally, the CEQ regulations were promulgated through notice and comment rulemaking under the Administrative Procedure Act and were codified in the U.S. Code of Federal Regulations. Prior to the repeal of Executive Order 11991, there was authority from an executive order also present, and the Supreme Court has found underlying statutory authority as well. Hence, these regulations should be understood as having been judicially enforceable. However, there is not total agreement on this matter. The administration should tread carefully, since casting doubt on the prior legal basis for these regulations risks destabilizing the legal foundation for a wide range of other executive branch procedural rules, with potentially serious consequences.
That said, as a practical matter, CEQ’s regulations are deeply problematic and have contributed to many significant problems that have long plagued the NEPA review process. Agencies face lengthy timelines for completing their environmental impact statements, and the process of engaging with and incorporating feedback from the public can substantially increase project costs. Although there has been some improvement in review periods in recent years, the process still takes years to complete and generates documentation spanning hundreds of pages. The resulting inefficiencies discourage beneficial projects by imposing substantial economic costs, leading to funding uncertainties, and increasing litigation risks, all without necessarily improving environmental outcomes.
Therefore, as a matter of policy, rescinding the regulations is the appropriate course of action. Furthermore, with the 1977 executive order now rescinded, the directive from the president for CEQ to issue these regulations has now been withdrawn. By removing these particular regulations from the Code of Federal Regulations, CEQ allows agencies a more flexible approach to implementing NEPA. The interim final rule thus helps reset the basis on which agencies conduct environmental reviews. Moving forward, agencies will rely on their own NEPA procedures, as well as updated guidance from CEQ.
Recommendations for Future NEPA Reforms
As the Administration and CEQ consider the next phase of NEPA implementation, I respectfully submit the following reform ideas, which are intended to help CEQ further streamline the NEPA process.
- Replace Agency-Specific NEPA Regulations with Non-Binding Guidance:
Since CEQ is rescinding its own government-wide NEPA regulations and replacing them with guidance, individual agencies should align with this approach by repealing their current NEPA-implementing regulations and substituting them with non-binding, non-judicially enforceable guidance. This change would maintain the essential purpose of NEPA—informed and transparent decision-making—while reducing rigid mandates that can stall projects and expose agencies to litigation.The agencies may wish to maintain some binding categorical exclusions for certain actions with no likely significant environmental impact, or to maintain other such limitations on the scope of the review needed in particular circumstances. - Clarify the definition of “Major Federal Action”:
Congress has defined “major Federal action” as one “subject to substantial Federal control and responsibility,” [13] but further refinement of this definition is needed. In its February 2025 guidance, CEQ encourages agencies to adopt clear “thresholds” for when a proposed activity qualifies as a major federal project.[14] Potential benchmarks could take the form of a defined percentage of federal funding of a project—for instance, exceeding 50 percent of total project funding—or a fixed dollar amount, such as $100 million. Establishing unambiguous criteria would help agencies consistently distinguish minor or local projects from those that legitimately warrant a full NEPA review. - Specify Criteria for “Reasonably Foreseeable Environmental Effects”: Agencies should set clear parameters defining the time horizon and the degree of causal connection required to classify potential impacts as “reasonably foreseeable.” For example, a project could be deemed not to have a “significant” effect unless it manifests impacts within a certain timeframe. Or agencies might treat an effect as reasonably foreseeable only if it is no more than two causal steps removed from the proposed action, so that the relationship between the project and the impact is not too indirect or attenuated. Alternatively, effects that are geographically remote from the project might not be required to be considered. By providing this type of clarity, agencies can avoid reliance on highly speculative, distant, or long-term projections, thereby strengthening the credibility and utility of their environmental analyses.
- Establish Clear Boundaries for Indirect Impacts:
Agencies should define appropriate, reasonable bounds for when to consider indirect, upstream or downstream effects. To do so, agencies must think carefully about how far upstream and downstream effects should be considered, given the practical limitations on agencies’ time and resources. Effects that are highly dependent on additional uncertain factors, unrelated to the project in question, or that fail to meet the above-mentioned definition of “significance” could be excluded from consideration. By clarifying which impacts are too remote in the production process, insignificant, or speculative to be considered, agencies can avoid unduly extensive environmental reviews and concentrate resources on factors that are most realistic and therefore most pertinent to decision-making. - Encourage Greater Project Sponsor Involvement: Under amendments to NEPA made by the Fiscal Responsibility Act of 2023, agencies have enhanced authority to rely on project sponsor–prepared environmental documents. CEQ should urge agencies to make full use of this option, provided quality and integrity are maintained through appropriate oversight.
- Encourage Programmatic Reviews: Section 108 of NEPA, added by the Fiscal Responsibility Act of 2023, clarifies that agencies can rely on a single programmatic environmental document for up to five years before needing to reevaluate it. CEQ should urge agencies to develop programmatic reviews that cover broad or repetitive activities. By doing so, subsequent project-level analyses can tier up to the existing programmatic review, speeding up approvals, reducing redundant work, and ensuring a consistent set of baseline assumptions across similar actions.
- Expand Categorical Exclusions (CEs): CEQ should work with agencies to harmonize or adopt each other’s existing CEs.
Conclusion
Thank you for considering these comments. I commend CEQ for taking this important step to remove regulations that have contributed to unnecessary costs and litigation. Having recognized the drawbacks of the prior regulatory framework, the Council now has an opportunity to update NEPA policies so they better align with the statute’s goal of informed but efficient decision-making.
Sincerely,
James Broughel, PhD
Senior Fellow, Competitive Enterprise Institute