Without interagency and intergovernmental cooperation under NEPA, environmental outcomes will suffer.
The National Environmental Policy Act (NEPA), enacted in 1970, requires that federal agencies disclose the environmental impacts of major federal actions prior to committing resources or granting project approvals. While the law has historically been immune to political shifts, NEPA has seen more changes in the past year than perhaps at any other point in its five-decade history. These recent changes—driven by a trend away from agency deference and an increase in regulatory rollbacks—have unsettled the interagency and intergovernmental regulatory structure that, despite its limitations, played a vital role in making NEPA’s implementation more effective.
Although NEPA’s text does not grant rulemaking authority, courts have long deferred to the Council on Environmental Quality (CEQ) for establishing the NEPA implementation rules for agencies. CEQ, in turn, established uniform baseline rules to implement the environmental review process, allowing agencies some discretion to tailor procedures based on their statutory mandates. Congress has occasionally buttressed CEQ’s implicit rulemaking authorities. In 2023, Congress passed the Fiscal Responsibility Act, which included a section called the Builder Act. The Builder Act codified the responsibilities of lead and cooperating agencies, encouraged the use of a single review document for multi-agency reviews, and allowed state, local, and tribal governments to request cooperating agency status. By reducing variation in how agencies implemented NEPA, this structure provided stakeholders with a more stable regulatory environment that facilitated long-term planning.
The long-standing deference to CEQ, however, has come under increased scrutiny. Last November, in Marin Audubon Society v. Federal Aviation Administration, the U.S. Court of Appeals for the D.C. Circuit ruled that CEQ’s regulations were beyond the scope of its legal authority. Shortly thereafter, the U.S. District Court for the District of North Dakota issued a nationwide injunction blocking the Biden Administration’s rule implementing “Phase 2” of its NEPA revisions in Iowa v. CEQ, noting that “CEQ had no authority to issue a binding rule” because it “inappropriately relies on executive orders and not direction from Congress.”
These cases come on top of a February interim final rule from CEQ rescinding the previous NEPA implementation rules. CEQ’s subsequent memo provided agencies with some directives for issuing new NEPA regulations. It did not, however, provide guidance on early engagement across agencies and governments or the integration of statutes, both of which were overlooked in the Builder Act.
The elimination of major aspects of CEQ’s uniform framework drew immediate concerns from industry and environmental stakeholders for its effects on regulatory uncertainty, including the efficacy of intergovernmental cooperation.
The cooperative framework is particularly salient in NEPA’s environmental impact statement process. Environmental impact statements are documents that agencies are required to prepare when a proposed action has a significant impact on the environment. These documents identify potential environmental effects of the proposed action and evaluate alternatives based on agency expertise and public input. Under the rescinded rules, federal agencies were required to engage in “interagency cooperation before the environmental impact statement is prepared, rather than submission of adversary comments on a completed document” and to eliminate “duplication with state and local procedures, by providing for joint preparation” of environmental statements. These requirements enabled reviews to encompass requirements across jurisdictions and statutory obligations, ensuring the “hard look” requirement was fulfilled. The hard look requirement mandates that agencies take a “hard look” at environmental impacts, rather than achieve a specific substantive outcome.
Read more at
