Regulations issued by the Council on Environmental Quality (CEQ) are being rescinded by a Trump Executive Order, setting in motion the dismantling of one of environmentalists greatest weapons to stop productive uses of land.
On January 27th, ASL reported on a lawsuit named Marin Audubon Society, et al v. Federal Aviation Administration et al. decided by the U.S. Court of Appeals on November 12, 2024, that declared the Council on Environmental Quality (CEQ) lacked authority to issue judicially enforceable regulations under the National Environmental Policy Act (NEPA).
NEPA was originally a four page Act requiring the federal government to consider the environmental impact of a major federal action before authorizing the action. The projects that Congress had in mind were “major projects,” such as the building of a nuclear facility near a residential community. Congress felt it was prudent to first analyze the impact on the human environment prior to authorizing the action.
But NEPA has become a bureaucratic morass of endless analysis and procedural hurdles preventing common sense and necessary projects from timber sales that would prevent wildfires to road expansions improving transportation. This is a result of the agency regulations promulgated by the CEQ. They turned a simply worded law into a political tool for environmentalists to stop productive activities that did not meet their social goals.
Now that a court has pointed out Congress did not authorize CEQ to issue NEPA regulations, the Trump Administration has a new opportunity to align NEPA with Congressional intent.
One of President Trump’s first actions was to sign Executive Order 14154, titled “Unleashing American Energy”. Within this EO, President Trump rescinded EO 11991 signed by President Carter in 1977, which directed CEQ to draft regulations implementing NEPA and required Federal agencies to comply with those regulations.
Carter authorized CEQ to promulgate NEPA regulations by an Executive Order, but the Court views this as federal overreach since Congress did not delegate this authority to the President or the agencies. Since the CEQ NEPA regulations were promulgated by Executive Order, President Trump has the authority to rescind these by the same action.
Pursuant to President Trump’s EO 14154, on February 20th, CEQ issued an Interim Final Rule in the Federal Register to rescind its NEPA regulations.
EO 14154 also directs CEQ to issue guidance to agencies on implementing NEPA and then instructs CEQ to coordinate the revision of agencies’ implementing regulations. The rule will rescind CEQ’s NEPA regulations within 30 days of publication.
Historically, all federal agencies conformed to CEQ’s NEPA regulations and implemented their own version of NEPA procedures. Trump’s EO allows agencies to remain free to use or amend those procedures. And, removing CEQ’s regulations does not constitute a retroactive change in agencies’ practices.
However, 14154 also directs CEQ to issue guidance to agencies to amend their NEPA regulations they’ve adopted since Carter’s 11991 EO.
It’s assured there will be multiple lawsuits over this Rule change, but the President has the vested authority by the Constitution and the laws of the United States to rescind any previous President’s executive orders.
