NEPA Without Public Comment? Risks and Realities

Imagine a National Environmental Policy Act (NEPA) review where final environmental assessments (EAs) and environmental impact statements (EISs) are posted online with no opportunity for public comment. That scenario is already occurring across several agencies in 2025. While the Department of Defense (DoD) and some other agencies continue to provide 30-day draft public comment periods for EAs and EISs, the Department of the Interior (DOI) and the Department of Energy (DOE) have issued new procedures that reduce public involvement requirements for their NEPA documents.

For federal clients, contractors, and partners, this shift matters. The rules of engagement are no longer uniform. As agencies issue new NEPA implementing procedures, the level and form of public involvement are trending towards less involvement and are increasingly determined on a case-by-case basis.

Six Key Takeaways

1. CEQ rescission opened the door
On February 25, 2025, the Council on Environmental Quality (CEQ) issued an interim final rule removing all NEPA regulations from the Code of Federal Regulations in response to Executive Order 14154, “Unleashing American Energy.” (Federal Register notice) This rescission left agencies to craft their own NEPA procedures, producing wide variation in how public comment periods are handled. Several agencies have since prepared, published, and begun implementing new NEPA guidance.

2. DOI changed public outreach approach first
DOI’s July 3, 2025 interim final rule moved most public comment requirements out of regulation and into a non-binding handbook (Federal Register notice). DOI bureaus now have broad discretion over whether to publish draft environmental documents or seek public input.

For example, under these new procedures, some DOI bureaus have proceeded with major projects without offering a public comment period on draft documents. The Office of Surface Mining Reclamation and Enforcement recently published the Black Butte Federal Coal Lease WYW-6266 Emergency EIS in Wyoming without releasing a draft EIS for public review, instead moving directly from a scoping period to a final EIS and Record of Decision, reflecting the accelerated approach. Most of DOI’s expedited NEPA reviews to date have been tied to energy leasing and permitting actions, a priority reinforced by Executive Order 14154, which directed agencies to streamline environmental reviews for energy development.

3. DOE shifted to “strategic” engagement
DOE’s new implementing procedures (June 30, 2025) emphasize efficiency over uniform participation:

- - During early scoping, DOE may request input from agencies, Tribes, industry groups, and the public as appropriate to the proposal (Section 2.2(d)(2))
  - Avoid steps that do not improve efficiency (Section 2.2(d))
  - Draft Environmental Assessments (EAs) are not clearly required to be released for public review
  - Final EAs and Findings of No Significant Impact will be posted on DOE’s website (DOE NEPA Procedures PDF)
  - For Environmental Impact Statements (EISs) DOE will seek state, tribal, or local agency comments as appropriate and may solicit them where it believes they will aid its NEPA duties.

Bottom line: DOE proponents are now weighing the risk-benefit of public engagement rather than following a default model; for lower-risk proposals, DOE may elect not to conduct a standard public comment process.

4. DoD is more consistent – for now
DoD rescinded its NEPA regulations on June 30, 2025, but its newly issued implementing procedures continue to encourage public engagement (DoD NEPA Implementing Procedures). Many installations still observe 30-day draft comment periods, particularly where litigation risk or stakeholder sensitivity is high. For less contentious actions, some DoD components (e.g., USACE) have used 15-day public comment windows on EAs/FONSIs in certain cases.

For a deeper dive into DoD’s procedures, check out our related Scout blog post, The DoD’s New Uniform NEPA Procedures – What They Are and What They Mean For You, co-authored by Ryan Pingree and Melanie Hernandez.

5. What are other Federal Agencies doing
While several other federal agencies have issued updates to their NEPA implementing procedures, or are actively working on updates now, we did not see major changes to their public comment practices at this time. Given how quickly agencies are revising their rules, this could change in the near future.

- The National Aeronautics and Space Administration (NASA) revalidated its NEPA procedural requirements with Change 2 on April 1, 2025 (NPR 8580.1A) rather than rewriting them, signaling incremental updates.
- The Department of Homeland Security (DHS) continues to use Directive 023-01 (Rev. 01) and Instruction Manual 023-01-001-01 (Rev. 01) while drafting department-wide NEPA regulations (DHS Directives System Directive 023-01).
- In July of this year, the U.S. Nuclear Regulatory Commission (NRC) issued SRM-SECY-24-0046 directing staff to pursue rulemaking to revise the NRC’s NEPA regulations (Nuclear Regulatory Commission).
- By contrast, the U.S. General Services Administration (GSA) continues to rely on Order ADM 1095.1F and the Public Buildings Service (PBS) NEPA Desk Guide, with no 2025 overhaul posted, useful as a “no-change” reference point (Order ADM 1095.1F, PBS Desk Guide).

Bottom line: None of these agency updates reference changes to public commenting requirements.

6. Litigation and optics risks remain
Reducing public comment may save time, but it carries risks:

- Communities, tribes, and states may feel excluded, increasing opposition or legal challenges.
- Courts may scrutinize whether agencies met statutory obligations under NEPA as amended by the Fiscal Responsibility Act of 2023 (CEQ FRA summary).
- Agencies perceived as bypassing the public may face reputational impacts and delays stemming from protests or congressional attention.

Why Agencies Are Pulling Back on Public Comment

Several factors are pushing DOI, DOE, and others to scale back the level of public engagement:

1. Executive direction: President Trump signed Executive Order 14154, “Unleashing American Energy,” which directs agencies to streamline permitting for infrastructure and energy projects (including interstate natural gas pipelines, liquefied natural gas (LNG) export terminals, long-distance transmission lines, and critical minerals mining), emphasizing national security and economic competitiveness. Faster reviews can mean fewer mandatory public steps.

2. Statutory page limits and deadlines: The Fiscal Responsibility Act of 2023 imposes strict deadlines and page limits for EAs and EISs. Lengthy public comment cycles can jeopardize schedules, incentivizing agencies to reduce or omit steps where not strictly required.

2. Resource constraints: Agencies report that responding to high-volume comments can consume substantial staff time with limited effect on outcomes. Under the current administration, speed has taken precedence over broader participation.

What Clients and Partners Should Do

Verify applicable procedures: Confirm at the project outset which agency-specific NEPA procedures apply, as each agency now (or soon will) have its own NEPA guidance.
Plan engagement strategically: Even if not required, consider including stakeholder touchpoints to reduce risk of later challenges, especially for controversial projects. Consult with your counsel and contractors for guidance.
Document the rationale: If draft comment periods are omitted or shortened, ensure the record explains the decision on statutory, efficiency, and project-specific grounds.
Account for deadlines and page limits: Build schedule flexibility when including optional public engagement.
Monitor Federal Register notices: Agencies continue to issue interim final rules and guidance; opportunities remain to inform how discretion is exercised.

Conclusion

Although some agencies are still following traditional comment periods in many projects, the broader federal trend is clear: public comment is being minimized or made optional at DOI, DOE, and perhaps soon at other agencies. The changes are driven by political priorities to accelerate energy and infrastructure projects, statutory mandates for faster reviews, and judicial deference to agency discretion. While avoiding or accelerating public review periods may result in a faster decision document, doing so may overlook important stakeholder feedback – feedback that is instrumental to the NEPA law, which encourages agencies to “inform the public about their decision making” and present legal risk for controversial projects. However, for projects with little or no risk, then reducing public involvement opportunities may be sensible.

Scout’s role is to help clients navigate this evolving landscape, manage risk, and deliver projects on time while maintaining stakeholder trust. Contact Melanie (Melanie.Hernandez@scoutenv.com) or Ryan (Ryan.Pingree@scoutenv.com) today to discuss your next project.

Bonus – Quick Reference on Agency NEPA Procedures

To help our clients and partners get fast answers in a shifting regulatory landscape, we pulled these links together in one place to make it easier to track the latest NEPA implementing procedures across federal agencies. Please note that these procedures are being revised rapidly, so dates and links may change as updates continue.