Congress, Courts, and Rulemakings Combine to Erode NEPA Protections
ASFPM joins with more than 130 other organizations opposing repeal of US Army Corps of Engineers NEPA regulations and adoption of far weaker “internal guidance,” vague, discretionary public participation, narrowed scoping, rather than meaningful and enforceable regulations.
The National Environmental Policy Act (NEPA) was signed into law on Jan 1, 1970 by President Richard Nixon and has served as one of the nation’s foundational environmental laws, guiding informed decision-making to help protect the environment for essentially all activities of the federal government for the past 55 years. In lofty terms, Congress declared that:
“[I]t is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” (NEPA, Sec. 101 [42 USC § 4331])
The primary tool for implementing these policies has been the requirement that federal agencies prepare a detailed environmental statement on the effects of proposed activities and projects and to consider potential alternatives and means of mitigating adverse effects, prior to making a decision whether to proceed. A critical element of the process has been formal and predictable opportunities for other agencies and the public to comment on the draft statement. For “major federal projects significantly affecting the human environment,” a detailed Environmental Impact Statement (EIS) must be prepared, including consideration of alternatives to the original proposal, to accompany plans for ultimate consideration by the decisionmaker. According to the United Nations Environmental Program, more than 100 countries worldwide have since adopted similar laws.
While there have been many attempts to weaken NEPA over the years, 2025 is the most concerted yet. At least three new developments since January have combined to seriously undercut the law’s future effectiveness.
On Jan. 20, President Trump issued Executive Order 14154, Unleashing American Energy, which among numerous other things, rescinded President Jimmy Carter’s 1977 E.O. 11911 that originally directed the President’s Council on Environmental Quality (CEQ) to develop the CEQ NEPA regulations. These regulations for more than 40 years have guided all federal agencies with consistent procedures to implement NEPA. In response to President Trump’s E.O., on April 11, 2025 (90 Fed.Reg.10610) the Council formally rescinded the CEQ NEPA regulations. As a result, nearly all federal agencies were left without valid NEPA regulations because they had based most or all of their agency regulations on the CEQ regulations that were just rescinded.
Enter Congress and the U.S. Supreme Court.
In June 2023, Congress added a set of “efficiency” improvement amendments to NEPA in the Fiscal Responsibility Act (P.L.118-5, June 3, 2023 the “Builder Act” portion (codified at 42 U.S.C. Secs 4336a-c). The FRA also raised the nation’s debt ceiling to avoid an imminent default. Toward the end of 2024, the CEQ was in the process of incorporating the changes into their regulations.
But then, on May 29, 2025, the U.S. Supreme Court issued a decision on a Utah railroad construction NEPA case (from the U.S. Surface Transportation Board) called Seven County Infrastructure Coalition v. Eagle County, Colorado (145 S. Ct. 1497 (2025)), which raised some major issues that are now fueling the energies of those aggressively seeking to weaken key public interest aspects of NEPA. The court opinion, for instance, said that “NEPA is a purely procedural statute” and “does not mandate particular results,” suggesting that as long as any report to the decisionmaker is “adequate,” the purpose of NEPA is accomplished. Yet, at the core of the decision, the court essentially acknowledges that NEPA is not just a check-the-box exercise and there are numerous fact findings, weightings, and considerations that aim toward identifying, reducing, and managing environmental impacts, meaning there may be less to “Seven County” than many are trying to read into it.
Major attacks on NEPA.
On July 3, 2025, the biggest bombshells struck in the form of several departments issuing Interim Final Rulemakings (“IFR’s”) along with public comment requests for rescinding the existing NEPA regulations of the Corps of Engineers and the Departments of Agriculture, Defense, Energy, Interior, and Transportation. The regulations would be replaced by a variety of similar but much-watered-down rules that are described to work mostly as “internal guidance” for the agencies to meet newly formulated Trump Administration NEPA requirements “consistent with Administration policies.”
In the case of the Army Corps of Engineers, where ASFPM has joined the National Wildlife Federation and 133 other organizations in opposing the rulemaking (Docket No. COE-2025-0007, July 3, 2025), the Corps rescinded all of its current Civil Works NEPA regs, which in the IFR were immediately replaced with new, more general guidance that are now being applied to all of the Department of Defense agencies.
The principal concerns of our joint comments were that the new DOD rules essentially eliminated the promise of opportunity for meaningful public comments that were included in the CEQ regulations (including even the requirement to publish Draft Environmental Impact Statements for the public to comment on). In addition, the DOD rules make discretionary in any individual project cases, when and where, comments of state, local, tribal, and territorial governments, and the public, may be requested, and without specified time periods. The DOD rules also narrow the scope of environmental reviews by limiting the scope of review to only the proposed project and its immediate effects, and eliminates requirements to consider many direct, indirect, and cumulative impacts geographically and temporally and from other reasonably foreseeable actions (e.g. allows the Corps to ignore likely future conditions, such as sea level rise or watershed development that would affect a project’s benefits). Other concerns include eliminating guidance on scientific integrity and a high likelihood that the disjointed and unpredictable process would result in inconsistent coordination with other agencies, more delays, and far less efficient overall implementation of NEPA. The DOD’s defense of rescinding regulations and replacing them with guidance was described in the DOD rule Supplemental Information:
(‘‘Simply stated, NEPA is a procedural cross-check, not a substantive roadblock.’’). Mindful of this, DoD has decided that the flexibility to respond to new developments in this fast-evolving area of law, afforded by using non-codified procedures, outweighs the public-transparency virtues of codifying its regulations going forward.” (90 Fed. Reg. 29451), July 3, 2025
So what is next?
The use of the Interim Final Rule means these rules went into effect immediately, with public comments coming 30 days afterward. The rules for each of the other departments mentioned above are similar. The rushed handling of these proceedings means there are likely many problems and violations of established NEPA law that are yet to surface and are likely to draw legal challenges.
No one would say that there is no room to improve the effectiveness and efficiency of NEPA. But turning what should be meaningful input and involvement by state, local, tribal and territorial governments and the public regarding environmental and social concerns into a chaotic and unpredictable process — and seriously limiting the scope of impacts and effects — are likely to damage NEPA’s and the agencies’ credibility with stakeholders and the public.
Thus far, these changes have not received the hard look of public scrutiny that is sorely needed. We encourage ASFPM members and others to let their elected officials know how these changes in long-standing, basic environmental procedures are likely to lead to many instances of poor planning and expensive mistakes by our federal agencies without providing a reliable, meaningful role for other levels of government and the public at large in the decision-making process.