Over the years I’ve shared our key takeaways on NEPA regulatory shifts in our Scout monthly blogs, but the changes we’re seeing now are something else. As a senior NEPA professional and environmental attorney, I’ve seen the landscape shift before, but this pace of change is unprecedented. At Scout, we’re here to help our clients and partners make sense of it all and stay ahead of the curve. Here’s my take on the latest developments shaping the NEPA landscape:
1. Revocation of CEQ’s Regulatory Authority
On January 20, 2025, President Trump issued the “Unleashing American Energy” executive order, rescinding a 1977 directive that granted the Council on Environmental Quality (CEQ) the authority to implement binding NEPA regulations. The executive order gives CEQ 30 days — until February 19, 2025 — to provide guidance on implementing NEPA without its regulations and to formally rescind the existing NEPA regulations. This deadline could bring additional clarity, but until then, federal agencies and stakeholders are left navigating a landscape of uncertainty. This abrupt change has also created significant uncertainty, especially for ongoing litigation that relied on CEQ regulations, necessitating a reevaluation of legal strategies.
What this means: Federal agencies and contractors must prepare for a period of regulatory ambiguity and adapt to a reliance on case law and agency-specific interpretations of NEPA.
2. Rescission of Environmental Justice Directives
The same executive order also revoked prior directives emphasizing environmental justice (EJ) considerations in federal decision-making. This move may lead to a reduced focus on assessing impacts on marginalized communities during environmental reviews. However, including EJ considerations can still be a strategic choice, depending on the project’s context and stakeholder expectations.
What this means: While EJ is no longer a federal priority, agencies and contractors may need to weigh project-specific factors and stakeholder interests to determine whether to include EJ analyses as part of NEPA documentation.
3. Supreme Court Reviews Scope of NEPA in Seven County Infrastructure Coalition v. Eagle County
The Supreme Court is currently reviewing Seven County Infrastructure Coalition v. Eagle County, a case that could significantly impact NEPA’s application. The decision may redefine the extent of environmental reviews required for federal projects, influencing future infrastructure developments. Fred Wagner, one of the lead counsels on the case, presented oral arguments in December 2024, and a decision is anticipated by June 2025.
At the upcoming National Association of Environmental Professionals (NAEP) Annual Conference & Training Symposium, from April 28 to May 1, 2025, I’ll be co-presenting the annual NEPA case law session led by counsel Pam Hudson, with Fred Wagner and other NEPA attorneys. We’ll break down last year’s key case law, but given the rapidly shifting landscape, this panel will likely provide valuable insights into what we might expect from future court rulings.
What this means: The Supreme Court’s decision could dramatically affect NEPA’s application, and the lack of CEQ regulations adds complexity to ongoing and future litigation. If NEPA cases can no longer rely on CEQ regulations, the legal landscape will shift to statutory language, case law, and potentially agency-specific practices. This underscores the importance of staying informed about evolving case law and ensuring NEPA documents are robust and defensible.
4. Overturning of Chevron Deference
In June 2024, the Supreme Court overturned the 40-year-old Chevron deference doctrine in Loper Bright Enterprises v. Raimondo. Previously, courts deferred to federal agencies’ reasonable interpretations of ambiguous statutes. Now, courts are expected to exercise independent judgment without deferring to agency expertise. Importantly, the recent executive order issued on January 20, 2025, does not change this holding. The Chevron decision remains the law, and agencies must ensure their regulations and policies align closely with statutory language to withstand judicial scrutiny.
What this means: Federal agencies, including the EPA, may face increased legal challenges to their regulations. While the executive order reshapes how NEPA is implemented, it does not alter the Chevron ruling, which continues to demand that agencies base their actions on clear and explicit statutory authority.
5. Increased Litigation Risks Due to Regulatory Changes
The combination of diminished CEQ authority, rescinded EJ directives, and evolving case law has created uncertainty for federal agencies and contractors. Litigation risks are likely to rise as stakeholders challenge NEPA compliance.
What this means: Proactive engagement with NEPA experts and thorough documentation are crucial to mitigate potential legal challenges in this evolving landscape.
At Scout, we understand that keeping up with these developments can be complex and dynamic. Our team is here to provide expert guidance, helping you navigate the evolving NEPA landscape with clarity and confidence. If you’d like support on your future projects or want to discuss how these changes might shape your planning, feel free to reach out to us at hello@scoutenv.com!
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