Trump Administration Seeks to Unravel NEPA

Despite being one of the shorter laws on the federal books, the National Environmental Policy Act imposes tall workloads on federal decision-making.

That has inspired the Trump administration to use a high-speed rule-making rule to essentially short-circuit NEPA’s rule of law. The change, which could take effect on April 11, would clear away environmental obstacles to President Donald Trump’s “Restoring American Energy Dominance” agenda, or as he put it in Tuesday’s joint address to Congress, “Drill, baby, drill.”

Passed in 1969, NEPA requires federal agencies to “use all practicable means to create and maintain conditions under which man and nature can exist in productive harmony.” It does that by considering the environmental impacts of agency actions and giving the public opportunities to comment. Its environmental assessments and environmental impact statements examine timber sales, mine operations, ski runs, powerline construction, firefighting tactics — anything “when a federal agency develops a proposal to take a major federal action … that affects the quality of the human environment.”

But NEPA doesn’t specify how agencies do all that. To figure out the nitty-gritty of what action might or might not hurt the environment, the act created a presidentially appointed Council of Environmental Quality. The CEQ wrote regulations explaining how to analyze everything from how grazing allotments affect grizzly bears to how thick a forest should be to give elk hiding cover.

That delegation of authority has become NEPA’s Achilles’ heel. Recent federal court decisions have ruled that the law doesn’t give CEQ the power to make those regulations. That gave the Trump administration an opening to essentially unplug NEPA.

Trump imposed several limitations on NEPA in his first term, only to have most of them undone by President Joe Biden. Trump ordered the CEQ to streamline its environmental assessments and impact statements in 2017. CEQ adopted those changes in 2020 before Biden ordered a new review shortly after he took office. Congress issued its own updates in 2023, requiring time and page limits for the 2020 regulations. Biden added more changes in response to the congressional order in 2024, requiring “sound Federal agency decision-making that is grounded in science, including consideration of relevant environmental, climate change, and environmental justice effects."

That was good news for Kendall Cotton, president of the Frontier Institute which campaigns against “misguided government policy.”

“It’s a way to reduce the threats of lawsuits — what we call lawfare — that is shutting down development,” Cotton said. “In general, the sentiment is ‘let’s cut through the bureaucratic red tape that’s grown over the last 50 years since NEPA was enacted.’ We’re all for that. We have an emergency, not only in energy, but in critical minerals, all the things we use in our daily lives: phones, cars, whatever.”

Earthjustice Northern Rockies managing attorney Jenny Harbine countered that NEPA dismantling would hurt far more than help. Earthjustice has frequently used NEPA in court to overturn federal land and wildlife actions that failed to meet the law’s standards.

“It appears the design of the Trump administration is to unleash a host of harmful development activity in communities that sorely need the opportunities NEPA provides to have a voice,” Harbine said. “It’s creating chaos and gridlock, and much more troubling, it will endanger and silence communities that have used NEPA — the people’s law — to weigh in on governmental decisions that affect the health of their communities.”

Under the new Trump format, federal agencies would use or develop their own ways of implementing NEPA reviews. But legal experts worry that some of those policies depend on old CEQ regulations, which CEQ now says may not be legal, or vary so much from agency to agency as to sow confusion over whose rules rule.

The interim rule process is a much faster way of making major federal changes than the typical federal register review process. Its public comment period ends on March 27. As of March 7, it had received 13,635 comments.

“CEQ finds that an interim final rule is the most appropriate mechanism to accommodate both the President's direction and the principles of public participation in regulatory action,” the February 25 Federal Register notice stated. “Specifically, the President has directed CEQ … to simultaneously issue guidance to agencies on implementing NEPA and to propose rescinding CEQ's NEPA regulations within 30 days.”

But the process could backfire. Between the multi-agency definitions of what environmental regulations to use and the firing of thousands of federal employees charged with implementing those regs, federal action could end up taking even longer.

“It’s kind of a crazy way to run a country, because uncertainty is nobody's friend, and certainly not developers,” Deborah Sivas, director of the Stanford University Environmental Law Clinic, told Oil and Gas Watch. “It’s just a lot to have to figure out what to do now with fewer people probably doing the work.” 

And the Trump administration hasn’t had the best luck with its policies in court. A 2021 study of his first administration’s legal track record found that while federal agencies typically win about 70 percent of their court challenges, Trump’s rate fell to 23 percent.

“We’re in a moment right now as litigators,” Earthjustice’s Harbine said. “We will use the courts to continue to protect our clients and communities from the environmental harm the administration seeks to unleash. So many of these Trump executive orders portend a real onslaught of what’s to come. We’re ready for it. This is what the courts are built for.”