Removal of National Environmental Policy Act Implementing Regulations, 10610-10616 [2025-03014]

Agencies

• COUNCIL ON ENVIRONMENTAL QUALITY

[Federal Register Volume 90, Number 36 (Tuesday, February 25, 2025)]
[Rules and Regulations]
[Pages 10610-10616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-03014]


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COUNCIL ON ENVIRONMENTAL QUALITY

40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and 
1508

[CEQ-2025-0002]
RIN 0331-AA10


Removal of National Environmental Policy Act Implementing 
Regulations

AGENCY: Council on Environmental Quality.

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule removes the Council on Environmental 
Quality (CEQ) regulations implementing the National Environmental 
Policy Act (NEPA) from the Code of Federal Regulations. In addition, 
this interim final rule requests comments on this action and related 
matters to inform CEQ's decision making.

DATES: This interim rule is effective April 11, 2025. Comments are due 
by March 27, 2025.

ADDRESSES: You may submit comments through any of the following 
methods:
    [ssquf] Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    [ssquf] Fax: 202-456-6546.
    [ssquf] Mail: Council on Environmental Quality, 730 Jackson Place 
NW, Washington, DC 20503.
    Instructions: All submissions must include the agency name, 
``Council on Environmental Quality,'' and docket number, CEQ-2025-0002, 
for this rulemaking. All comments received will be posted without 
change to https://www.regulations.gov, including any personal 
information provided. Do not submit electronically any information you 
consider to be private, Confidential Business Information (CBI), or 
other information whose disclosure is restricted by statute.
    Docket: For access to the docket to read comments received, go to 
https://www.regulations.gov.

[[Page 10611]]


FOR FURTHER INFORMATION CONTACT: Megan Healy, Principal Deputy Director 
for NEPA, 202-395-5750, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The Council on Environmental Quality (CEQ) is issuing this interim 
final rule to remove the existing implementing regulations for the 
National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., as 
amended (NEPA), in response to Executive Order (E.O.) 14154, Unleashing 
American Energy. Among other things, E.O. 14154 rescinds E.O. 11991, 
Relating to Protection and Enhancement of Environmental Quality, which 
amended E.O. 11514, Protection and Enhancement of Environmental 
Quality, and directed CEQ to promulgate regulations for implementing 
NEPA and required Federal agencies to comply with those regulations. 
E.O. 14154 also directs CEQ to issue guidance on implementing NEPA and 
to propose rescinding the NEPA implementing regulations. This interim 
final rule carries out President Trump's latter instruction. See 
Section II.A. As explained in Section II.B of this rule, CEQ has also 
concluded that it may lack authority to issue binding rules on agencies 
in the absence of the now-rescinded E.O. 11191. CEQ cited E.O. 11991 as 
authority in 1978 when it first issued its NEPA regulations. However, 
that Executive Order has now been rescinded, and CEQ therefore has 
determined that it is appropriate to remove its regulations from the 
Code of Federal Regulations.
    This action meets the requirements of E.O. 14154 and the 
Administrative Procedure Act (APA). CEQ's action removes all iterations 
of its NEPA implementing regulations, including 40 CFR parts 1500, 
1501, 1502, 1503, 1504, 1505, 1506, 1507, and 1508, and will delay the 
effective date of this interim final rule to April 11, 2025. This 
period serves to provide fair notice to interested persons and to allow 
for public comment on CEQ's interim final rule. Public comments on the 
matters addressed in this interim final rule are due by April 11, 2025. 
As explained in Section IV of this rule, CEQ requests and encourages 
public comment on the rationale for this action and related matters 
that may inform CEQ's decision making. CEQ will consider and respond to 
comments before finalizing the interim final rule.

A. National Environmental Policy Act

    Congress enacted NEPA to declare a national policy ``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 [to] fulfill the social, economic, 
and other requirements of present and future generations of 
Americans.'' 42 U.S.C. 4331(a).
    NEPA, as amended by the Fiscal Responsibility Act of 2023 (FRA), 
Public Law 118-5, furthers this national policy by requiring Federal 
agencies to prepare a ``detailed statement'' for proposed ``major 
Federal actions significantly affecting the quality of the human 
environment.'' 42 U.S.C. 4332(2)(C). This statement must address: (1) 
The reasonably foreseeable environmental effects of the proposed agency 
action; (2) the reasonably foreseeable adverse environmental effects 
that cannot be avoided; (3) a reasonable range of alternatives to the 
proposed agency action, including an analysis of any negative 
environmental impacts of not implementing the proposed agency action in 
the case of a no action alternative, that are technically and 
economically feasible, and meet the purpose and need of the proposal; 
(4) the relationship between local short-term uses of man's environment 
and the maintenance and enhancement of long-term productivity; and (5) 
any irreversible and irretrievable commitments of resources that would 
be involved in the proposed action. 42 U.S.C. 4332(2)(C).
    NEPA further mandates that Federal agencies ensure the professional 
and scientific integrity of environmental documents; use reliable data 
and resources when carrying out NEPA; and study, develop, and describe 
technically and economically feasible alternatives. 42 U.S.C. 
4332(2)(D)-(F). NEPA provides procedures for making threshold 
determinations about whether an environmental document must be prepared 
and the appropriate level of environmental review. 42 U.S.C. 4336(a)-
(b).
    NEPA does not mandate particular results or substantive outcomes. 
Rather, NEPA requires Federal agencies to consider the environmental 
effects of proposed actions as part of agencies' decision-making 
processes. As amended by the FRA, NEPA provides additional requirements 
to facilitate timely and unified Federal reviews, including provisions 
clarifying lead, joint lead, and cooperating agency designations, 
generally requiring the development of a single environmental document, 
directing agencies to develop procedures for project sponsors to 
prepare environmental assessments and environmental impact statements, 
and prescribing page limits and deadlines. 42 U.S.C. 4336a. NEPA also 
sets forth the circumstances under which agencies may rely on 
programmatic environmental documents, 42 U.S.C. 4663b, and adopt and 
use another agency's categorical exclusions. 42 U.S.C. 4336c.

B. Council on Environmental Quality

1. Establishment and Statutory Authority
    NEPA established CEQ as an advisory agency within the Executive 
Office of the President to assist and advise the President on certain 
environmental matters and the implementation of NEPA's national policy. 
42 U.S.C. 4342. Specifically, NEPA charges CEQ with the duty and 
function to: (1) to assist and advise the President in the preparation 
of the Environmental Quality Report; \1\ (2) to gather, analyze, and 
interpret information concerning the conditions and trends in the 
current and prospective quality of the environment for the purpose of 
determining whether such conditions and trends are interfering, or are 
likely to interfere, with the achievement of NEPA's national policy, 
and to compile and submit to the President studies on such conditions 
and trends; (3) to review and appraise Federal programs and activities 
for the purpose of determining the extent to which such programs and 
activities contribute to the achievement of NEPA's national policy, and 
to make relevant recommendations to the President; (4) to develop and 
recommend to the President national policies to foster and promote the 
improvement of environmental quality to meet the conservation, social, 
economic, health, and other requirements and goals; (5) to conduct 
investigations, studies, surveys, research, and analyses relating to 
ecological systems and environmental quality; (6) to document and 
define changes in the natural environment, including the plant and 
animal systems, and to accumulate necessary data and other information 
for a continuing analysis of these changes or trends and an 
interpretation of their underlying causes; and (7) to make and furnish 
such studies, reports thereon, and recommendations with respect to 
matters of policy and legislation as the President may request. 42 
U.S.C. 4344.
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    \1\ Congress terminated this reporting requirement, effective 
May 15, 2000, pursuant to section 3003 of Public Law 104-66, as 
amended.
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    NEPA further emphasizes these advisory functions by requiring

[[Page 10612]]

appointed members of CEQ to be exceptionally well-qualified to analyze 
and interpret environmental trends and information; to appraise Federal 
programs and activities in the light of NEPA's national policy; to be 
conscious of and responsive to the scientific, economic, social, 
esthetic, and cultural needs and interests of the Nation; and to 
formulate and recommend national policies to promote the improvement of 
the quality of the environment. 42 U.S.C. 4342. NEPA authorizes CEQ to 
employ personnel necessary to carry out these statutory functions. 42 
U.S.C. 4343.
    In addition, NEPA provides that all Federal agencies must consult 
with CEQ while identifying and developing methods and procedures to 
ensure that unquantified environmental amenities and values may be 
given appropriate consideration in the decision-making process, 42 
U.S.C. 4332(2)(B), and to otherwise provide assistance to CEQ, 42 
U.S.C. 4332(2)(B). CEQ may also designate a lead agency for 
environmental review of a proposed action when agencies are unable to 
reach agreement. 42 U.S.C. 4336a(a)(4)-(5).
2. CEQ Regulations
    In 1970, President Nixon issued E.O. 11514, Protection and 
Enhancement of Environmental Quality, which directed CEQ to ``[i]ssue 
guidelines to Federal agencies for the preparation of detailed 
statements on proposals for legislation and other Federal actions 
affecting the environment, as required by [42 U.S.C. 4332(2)(C)].'' \2\ 
CEQ issued interim guidelines in April of 1970 and revised them in 1971 
and 1973.\3\
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    \2\ 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
    \3\ See 35 FR 7390 (May 12, 1970) (interim guidelines); 36 FR 
7724 (Apr. 23, 1971) (final guidelines); 38 FR 10856 (May 2, 1973) 
(proposed revisions to guidelines); 38 FR 20550 (Aug. 1, 1973) 
(revised guidelines).
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    In 1977, President Carter issued E.O. 11991.\4\ E.O. 11991 amended 
section 3(h) of E.O. 11514, directing CEQ to ``[i]ssue regulations to 
Federal agencies for the implementation of the procedural provisions of 
[NEPA] . . . to make the environmental impact statement process more 
useful to decision[ ]makers and the public; and to reduce paperwork and 
the accumulation of extraneous background data, in order to emphasize 
the need to focus on real environmental issues and alternatives,'' and 
to ``require [environmental] impact statements to be concise, clear, 
and to the point, and supported by evidence that agencies have made the 
necessary environmental analyses.'' E.O. 11991 also amended section 2 
of E.O. 11514 to require agency compliance with the regulations issued 
by CEQ. The Executive Order was based on the President's constitutional 
and asserted statutory authority, including NEPA, the Environmental 
Quality Improvement Act, 42 U.S.C. 4371 et seq., and section 309 of the 
Clean Air Act, 42 U.S.C. 7609. CEQ promulgated its NEPA regulations in 
1978.\5\ CEQ made typographical amendments to the 1978 implementing 
regulations in 1979 \6\ and amended one provision in 1986.\7\
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    \4\ 42 FR 26967 (May 25, 1977).
    \5\ CEQ, Implementation of Procedural Provisions; Final 
Regulations, 43 FR 55978 (Nov. 29, 1978).
    \6\ CEQ, Implementation of Procedural Provisions; Corrections, 
44 FR 873 (Jan. 3, 1979).
    \7\ CEQ, National Environmental Policy Act Regulations; 
Incomplete or Unavailable Information, 51 FR 15618 (Apr. 25, 1986) 
(amending 40 CFR 1502.22).
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    On August 15, 2017, President Trump issued E.O. 13807, Establishing 
Discipline and Accountability in the Environmental Review and 
Permitting Process for Infrastructure Projects,\8\ which directed CEQ 
to establish and lead an interagency working group to identify and 
propose changes to the NEPA regulations.\9\ In response, CEQ issued an 
advance notice of proposed rulemaking on June 20, 2018,\10\ and a 
notice of proposed rulemaking (NPRM) on January 10, 2020, proposing 
broad revisions to revise, update, and modernize the 1978 
regulations.\11\ CEQ promulgated its final rule on July 16, 2020.\12\
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    \8\ 82 FR 40463 (Mar. 7, 1970).
    \9\ Id. at sec. 5(e)(iii).
    \10\ CEQ, Update to the Regulations for Implementing the 
Procedural Provisions of the National Environmental Policy Act, 83 
FR 28591 (June 20, 2018).
    \11\ CEQ, Update to the Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act, 85 FR 1684 
(Jan. 10, 2020).
    \12\ 86 FR 43304 (July 16, 2020).
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    Following the issuance of the 2020 rule, five lawsuits were filed 
challenging it.\13\ These cases challenged the 2020 rule on a variety 
of grounds, including under the APA and NEPA, and contended that the 
rule exceeded CEQ's authority and that the related rulemaking process 
was defective. However, as discussed below, after CEQ indicated its 
intent to reconsider the 2020 rule and again revise the CEQ 
regulations, the district courts issued temporary stays in each of 
these cases, except for Wild Virginia v. Council on Environmental 
Quality, which the district court dismissed without prejudice on June 
21, 2021.\14\
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    \13\ Wild Va. v. Council on Env't Quality, No. 3:20cv45 (W.D. 
Va. 2020); Env't Justice Health All. v. Council on Env't Quality, 
No. 1:20cv06143 (S.D.N.Y. 2020); Alaska Cmty. Action on Toxics v. 
Council on Env't Quality, No. 3:20cv5199 (N.D. Cal. 2020); 
California v. Council on Env't Quality, No. 3:20cv06057 (N.D. Cal. 
2020); Iowa Citizens for Cmty. Improvement v. Council on Env't 
Quality, No. 1:20cv02715 (D.D.C. 2020).
    \14\ Wild Va. v. Council on Env't Quality, 544 F. Supp. 3d 620 
(W.D. Va. 2021). The Fourth Circuit affirmed that dismissal on 
December 22, 2022. Wild Va. v. Council on Env't Quality, 56 F.4th 
281 (4th Cir. 2022).
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    On January 20, 2021, President Biden issued E.O. 13990, Protecting 
Public Health and the Environment and Restoring Science to Tackle the 
Climate Crisis,\15\ which revoked E.O. 13807 and directed agencies to 
take steps to rescind any rules or regulations implementing it.\16\ An 
accompanying White House fact sheet, published on January 20, 2021, 
specifically identified the 2020 regulations for CEQ's review for 
consistency with E.O. 13990's policy.\17\
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    \15\ 86 FR 7037 (Jan. 25, 2021).
    \16\ Id. at sec. 7.
    \17\ The White House, Fact Sheet: List of Agency Actions for 
Review (Jan. 20, 2021), https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.
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    After conducting that review, on June 29, 2021, CEQ issued an 
interim final rule extending by 2 years the September 14, 2021, 
deadline for agencies to propose changes to existing agency-specific 
NEPA procedures to make those procedures consistent with the 2020 
regulations.\18\ Next, on October 7, 2021, CEQ issued a ``Phase 1'' 
proposed rule to amend the 2020 regulations to restore discrete 
portions of the 1978 regulations, which CEQ finalized on April 20, 
2022.\19\
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    \18\ CEQ, Deadline for Agencies to Propose Updates to National 
Environmental Policy Act Procedures, 86 FR 34154 (June 29, 2021).
    \19\ CEQ, National Environmental Policy Act Implementing 
Regulations Revisions, 86 FR 55757 (Oct. 7, 2021) (Phase 1 proposed 
rule); CEQ, National Environmental Policy Act Implementing 
Regulations Revisions, 87 FR 23453 (Apr. 20, 2022) (Phase 1 Final 
Rule).
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    On June 3, 2023, President Biden signed into law the FRA, which 
included amendments to NEPA.\20\ On July 31, 2023, CEQ published a 
``Phase 2'' proposed rule to again revise, update, and modernize the 
NEPA implementing regulations and propose revisions to implement the 
FRA amendments to NEPA.\21\ On May 1, 2024, CEQ finalized its Phase 2 
rule, which incorporated many of its proposed revisions, including 
those to implement the FRA's

[[Page 10613]]

amendments.\22\ After publication of the final rule, the three pending 
challenges to the 2020 regulations were voluntarily dismissed without 
prejudice.\23\
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    \20\ Specifically, it amended section 102(2)(C) and added 
sections 102(2)(D) through (F) and sections 106 through 111. 42 
U.S.C. 4332(2)(C)-(D), 4336-4336e.
    \21\ CEQ, National Environmental Policy Act Implementing 
Regulations Revision Phase 2, 88 FR 49924 (July 31, 2023) (Phase 2 
proposed rule).
    \22\ CEQ, National Environmental Policy Act Implementing 
Regulations Revision Phase 2, 89 FR 35442 (May 1, 2024) (Phase 2 
final rule).
    \23\ Order, Alaska Cmty. Action on Toxics v. Council on Env't 
Quality, No. 3:20cv5199 (N.D. Cal. Oct. 29, 2024), ECF No. 90; 
Order, California v. Council on Env't Quality, No. 3:20cv06057 (N.D. 
Cal. 2020), ECF No. 132; Order, Env't Justice Health All. v. Council 
on Env't Quality, No. 1:20cv06143 (S.D.N.Y. July 12, 2024), ECF No. 
109. A fourth case was voluntarily dismissed without prejudice prior 
to the final rule's publication. Order, Iowa Citizens for Cmty. 
Improvement v. Council on Env't Quality, No. 1:20cv02715 (D.D.C. 
March 29, 2024), ECF No. 42).
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    Shortly after its issuance, 20 States challenged CEQ's Phase 2 
rule.\24\ The States argued that the Phase 2 rule was deficient on 
several grounds, including under the APA and NEPA, and contended that 
the rule exceeded CEQ's authority. After the parties briefed cross-
motions for summary judgment, the Court of Appeals for the District of 
Columbia Circuit stated in an unrelated case that CEQ's NEPA 
implementing regulations are ultra vires because the agency lacks any 
lawful authority to promulgate binding regulations.\25\ Recognizing the 
import of the D.C. Circuit's reasoning, the North Dakota district court 
ordered the parties to submit additional briefing on CEQ's authority to 
issue regulations and allowed for supplemental briefing after a hearing 
concerning all motions before the court.
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    \24\ State of Iowa v. Council on Env't Quality, No 1:24cv00089 
(D.N.D. 2024).
    \25\ Marin Audubon Society v. Federal Aviation Administration, 
121 F.4th 902 (D.C. Cir. 2024), reh'g en banc denied, 2025 WL 374897 
(Jan. 31, 2025).
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    On January 20, 2025, President Trump issued E.O. 14154, Unleashing 
American Energy.\26\ The Executive Order revoked E.O. 11991, which had 
directed CEQ to issue regulations implementing NEPA and required 
Federal agencies to comply with those regulations.\27\ E.O. 14154 also 
directed CEQ to provide guidance on implementing NEPA and propose 
rescinding CEQ's NEPA regulations within 30 days of the order.\28\ 
Following CEQ's provision of initial guidance, E.O. 14154 directs the 
Chairman of CEQ to convene a working group to coordinate the revision 
of agency-level NEPA implementing regulations for consistency.
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    \26\ 90 FR 8353 (Jan. 20, 2025) (``E.O. 14154'').
    \27\ Id. at sec. 5
    \28\ Id. at sec 5(a). The guidance and any resulting agency 
implementing regulations must ``expedite permitting approvals and 
meet deadlines established in the [FRA].'' Id. at sec 5(c).
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    On February 3, 2025, the North Dakota district court granted 
summary judgment to the Plaintiff States in the Phase 2 rulemaking 
litigation, denied CEQ's and intervenor-defendants' cross-motions for 
summary judgment and partial summary judgment, and vacated the Phase 2 
rule.\29\ That court found that CEQ lacks statutory authority to 
promulgate binding rules implementing NEPA, and, in the alternative, 
that the Phase 2 rule exceeded CEQ's authority under NEPA and was 
arbitrary and capricious. The district court explained that its 
judgment would revert the CEQ regulations to the status quo that 
existed before CEQ promulgated the Phase 2 rule, i.e., the 2020 
regulations as amended by the Phase 1 rule.
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    \29\ Order, State of Iowa v. Council on Env't Quality, No 
1:24cv00089 (D.N.D. Feb. 3, 2025), ECF No.145.
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II. Basis for Removing the CEQ NEPA Regulations

A. Executive Order 14154 Rescinds Executive Order 11991 and Directs CEQ 
To Propose Rescinding Its NEPA Regulations

    As explained in Section I.B.2, President Carter originally directed 
CEQ to implement NEPA regulations via E.O. 11991. However, President 
Trump rescinded that Executive Order in E.O. 14154.\30\ Accordingly, 
the President has removed CEQ's prior asserted basis for issuing and 
maintaining its NEPA regulations. The President has further directed 
CEQ in E.O. 14154 to simultaneously issue guidance to agencies on 
implementing NEPA and to propose rescinding CEQ's NEPA regulations 
within 30 days of publication of E.O. 14154.\31\ E.O. 14154 then 
instructs CEQ to coordinate the revision of agencies' implementing 
regulations.\32\ For these reasons, CEQ has determined that it is 
appropriate to remove its NEPA regulations through this interim final 
rule, which is consistent with the President's revocation of E.O. 11991 
and complies with the direction to propose rescinding the regulations. 
This is an independent and sufficient reason for CEQ's interim final 
rule removing its NEPA implementing regulations from the Code of 
Federal Regulations.
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    \30\ E.O. 14154 at sec. 5(a).
    \31\ Id. at sec. 5(b).
    \32\ Id. at sec. 5(c).
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B. CEQ Has Identified No Other Authority To Maintain Its NEPA 
Implementing Regulations

    In addition to the grounds stated in Section II.A, which alone 
would serve as adequate justification for CEQ's action, CEQ has also 
come to have serious concerns about its statutory authority to maintain 
its NEPA implementing regulations, at least in the absence of E.O. 
11991. In the absence of E.O. 11991, the plain text of NEPA itself may 
not directly grant CEQ the power to issue regulations binding upon 
executive agencies.\33\ For this reason, CEQ has concluded that it may 
lack authority to issue binding rules on agencies in the absence of the 
now-rescinded E.O. 11191.
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    \33\ None of the other statutory authorities cited in E.O. 11991 
furnish CEQ with regulatory authority. Section 309 of the Clean Air 
Act directs the EPA Administrator to refer environmentally 
problematic actions to CEQ. 42 U.S.C. 7609. But that provision 
merely reinforces CEQ's advisory role; it does not transform CEQ 
into a regulatory agency. The same is true of the Environmental 
Quality Improvement Act of 1970, which allows CEQ to ``assist'' 
agencies--but not to command them. 42 U.S.C. 4372(d). Neither 
statute gives CEQ the power to independently issue regulations 
implementing NEPA, much less legislative rules with the force and 
effect of law.
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    While CEQ is mindful of the body of Supreme Court case law holding 
CEQ's past interpretations of NEPA as expressed through its 
implementing regulations were entitled to deference, see Andrus v. 
Sierra Club, 442 U.S. 347, 358 (1979) (``CEQ's interpretation of NEPA 
is entitled to substantial deference.''); Robertson v. Methow Valley 
Citizens Council, 490 U.S. 332, 355 (1989) (``CEQ regulations are 
entitled to substantial deference.''); Department of Transp. v. Public. 
Citizen, 541 U.S. 752, 757 (2004), none of these decisions expressly 
holds that Congress delegated authority to CEQ to bind Executive Branch 
agencies. In any event, these decisions occurred against the backdrop 
of the now-rescinded grant of authority in E.O. 11991. Nowhere in 
Andrus, Methow Valley, Public Citizen, nor any other case did the Court 
after briefing and argument find that NEPA provided CEQ with the 
authority to bind other agencies in the absence of E.O. 11991.

C. No Reliance Interests Implicated by Removal of CEQ's Regulations

    Because CEQ's NEPA regulations speak to the procedural obligations 
of Federal agencies as they implement NEPA, rather than imposing 
liability, fines, or a tangible burden on third parties, CEQ, when 
revising or removing those regulations, has no obligation to provide 
special consideration of reliance interests.
    This is particularly so given that the removal of CEQ's regulations 
does not strip agencies of discretion to continue following similar 
procedures. Agencies have NEPA implementing procedures that largely 
conform to CEQ's

[[Page 10614]]

regulations.\34\ After this action, agencies will remain free to use or 
amend those procedures, and agencies should, in defending actions they 
have taken, continue to rely on the version of CEQ's regulations that 
was in effect at the time that the agency action under challenge was 
completed. Thus, removing CEQ's regulations does not constitute a 
retroactive change in agencies' practices or an alteration of the 
public or project sponsors' engagement under NEPA with respect to those 
agency actions. Moreover, to the extent that E.O. 14154 separately 
directs agencies to review and potentially revise their NEPA 
procedures, that is a matter of the President's authority to direct the 
functioning of the Executive branch, and, to the extent any reliance 
interests are implicated, does not fall within the scope of this 
interim final rule.
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    \34\ See, e.g., 10 CFR part 1021 (Department of Energy); 18 CFR 
part 380 (Federal Energy Regulatory Commission); 23 CFR part 771 
(Federal Highway Administration, Federal Railroad Administration, 
and Federal Transit Administration); 24 CFR part 50 (Department of 
Housing and Urban Development); 36 CFR part 220 (U.S. Forest 
Service).
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    Finally, any reliance on the CEQ regulations has been significantly 
lessened by CEQ's seriatim amendments of those regulations since 2020. 
As discussed in Section I.B, courts have questioned CEQ's rulemaking 
authority,\35\ and successive administrations have considered revisions 
to these rules,\36\ which have been subject to litigation. Indeed, the 
Phase 2 rule was subsequently litigated and vacated by the District of 
North Dakota, after the court concluded that CEQ lacked authority to 
promulgate its regulations.\37\
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    \35\ In addition to Marin Audubon Society and State of Iowa 
discussed herein, other courts have similarly questioned the legal 
status and effect of CEQ's NEPA regulations. See, e.g., Food & Water 
Watch v. United States Dep't of Agric., 1 F.4th 1112, 1119 (D.C. 
Cir. 2021) (Randolph, J, concurring) (``No statute grants CEQ the 
authority to issue binding regulations.'').
    \36\ See CEQ, National Environmental Policy Act Implementing 
Regulations Revision Phase 2, 89 FR 35442 (May 1, 2024) (Phase 2 
final rule); CEQ, National Environmental Policy Act Implementing 
Regulations Revisions, 87 FR 23453 (Apr. 20, 2022) (Phase 1 Final 
Rule); CEQ, Deadline for Agencies to Propose Updates to National 
Environmental Policy Act Procedures, 86 FR 34154 (June 29, 2021); 
CEQ, Update to the Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act, 86 FR 43304 
(July 16, 2020).
    \37\ Order, State of Iowa v. Council on Env't Quality, No 
1:24cv00089 (D.N.D. Feb. 3, 2025), ECF No.145.
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    Thus, agencies and the public have understood that CEQ's 
regulations were subject to potential change. Moreover, even as to the 
1978 regulations, courts and commenters have raised questions as to 
whether CEQ's regulations rest on a solid statutory foundation.\38\ In 
these circumstances, continued reliance is not justified.
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    \38\ See, e.g., Nevada v. Dep't of Energy, 457 F.3d 78, 87 (D.C. 
Cir. 2006) (``Because the CEQ has no express regulatory authority 
under [NEPA][]--it was empowered to issue regulations only by 
executive order--the binding effect of CEQ regulations is far from 
clear[.]'' (internal quotations and citations omitted)); TOMAC, 
Taxpayers of Michigan Against Casinos v. Norton, 433 F.3d 852, 861 
(D.C. Cir. 2006) (``[T]he binding effect of CEQ regulations is far 
from clear.''); City of Alexandria, Va. v. Slater, 198 F.3d 862, 866 
n.3 (D.C. Cir. 1999) (``The Council on Environmental Quality has no 
express regulatory authority under the National Environmental Policy 
Act[.]''); Ctr. for Biological Diversity v. Zinke, 260 F. Supp. 3d 
11, 17 (D.D.C. 2017) (``But NEPA itself does not expressly require 
that other agencies comply with the CEQ's regulations; therefore, 
the binding effect of CEQ regulations is far from clear.'' (internal 
quotation and citation omitted)). Further, before the Senate 
Environment and Public Works Subcommittee on Superfund, Ocean, and 
Water Pollution in 1989, then-CEQ Chairman Alan Hill urged Congress 
to provide CEQ with clear statutory authority to regulate. Amending 
the National Environmental Policy Act, Hearing before Subcomm. On 
Superfund, Ocean, and Water Protection, S. Hrg. 101-132 (June 1, 
1989) (``I think the first thing--and the legislation does touch on 
this--is granting statutory authority to the Council to promulgate 
regulations. Now, the regulations guiding the NEPA process for our 
Government are solely based on an authorization from executive 
order, and those are always subject to challenge.''); see also id. 
(Testimony of Michael McCloskey, Chairman of Sierra Club) (urging 
Congress to empower CEQ by codifying E.O. 11991 in law, which would 
in turn ``provide a statutory basis for [the 1978 regulations].''). 
Commentators have also noted that NEPA itself may not directly grant 
CEQ the power to issue regulations. See, e.g., NEPA Law and Litig. 
Sec.  2:9 (2024) (``NEPA conferred only advisory duties on the 
CEQ.''), Sec.  2:10 (``Congress usually delegates the administration 
of a statute to a federal agency, which is authorized to adopt 
regulations interpreting the statutory provisions. NEPA does not fit 
this model.''); Jamison E. Colburn, Administering the National 
Environmental Policy Act, 45 Envtl. L. Rep. News & Analysis 10287 
(2015) (examining CEQ's history, its powers and duties, and 
invocations of authority across Presidential administrations); Scott 
C. Whitney, The Role of the President's Council on Environmental 
Quality in the 1990's and Beyond, 6 J. Envtl. L. & Litig. 81 (1991) 
(concluding after examining the text, structure, and legislative 
history of NEPA that Congress did not delegate to CEQ the clear 
power to issue legislative-type rules).
---------------------------------------------------------------------------

III. Basis for Issuing an Interim Final Rule

A. The Interim Final Rule Satisfies Notice-and-Comment Rulemaking 
Procedures

    CEQ has determined that an interim final rule is the appropriate 
mechanism to remove the implementing regulations. An interim final rule 
containing all elements required by the APA for an NPRM, as provided in 
5 U.S.C. 553(b)-(d), satisfies the APA's procedural requirements.
    This interim final rule contains all of the APA-required elements 
for notice-and-comment rulemaking, see id.: a reference to legal 
authority, as required by 5 U.S.C. 553(b)(2) (Section II); a 
description of the terms and substance of the rule, as required by 5 
U.S.C. 553(b)(3) (Sections II and III); and a request for public 
comment, as required by 5 U.S.C. 553(c) (Section IV). 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. Specifically, the President has 
directed CEQ in E.O. 14154 to simultaneously issue guidance to agencies 
on implementing NEPA and to propose rescinding CEQ's NEPA regulations 
within 30 days of publication of E.O. 14154. Furthermore, CEQ has 
concluded, as explained in Section II.B, that it may lack authority to 
maintain its NEPA regulations in the absence of E.O. 11991. In light of 
these considerations, and as exacerbated by the fact that the most 
recent amendment to its regulations has been vacated by a district 
court after it concluded that CEQ has no rulemaking authority, CEQ is 
concerned that agencies and the public are confused as to the status 
and legitimacy of its NEPA regulations. CEQ determines that the most 
appropriate mechanism to carry out the President's dual direction, and 
to minimize and expeditiously resolve this period of confusion while 
still allowing for public participation, is to issue this interim final 
rule providing 30 days for public comment thereafter.

B. CEQ Has Good Cause for Proceeding With an Interim Final Rule

    Moreover, CEQ also finds that, to the extent that prior notice and 
solicitation of public comment would otherwise be required, the need to 
expeditiously resolve agency confusion satisfies the ``good cause'' 
exception in 5 U.S.C. 553(b)(B). The APA authorizes agencies to issue 
regulations without notice and public comment when an agency finds, for 
good cause, that notice and comment is ``impracticable, unnecessary, or 
contrary to the public interest,'' 5 U.S.C. 553(b)(B), and to make the 
rule effective immediately for good cause. 5 U.S.C. 553(d)(3). As 
discussed in Section III.A, the need to meet the deadlines in E.O. 
14154 and to avoid agency confusion given the recent vacatur of CEQ's 
2024 Rule makes proceeding through notice and comment before removal 
impracticable and unnecessary.
    To the extent that public comment may inform CEQ as to whether it 
has legal authority to make a different choice than the one it has 
taken in this interim final rule, CEQ's solicitation of public comment 
for 30 days following

[[Page 10615]]

the publication of the rule is intended to accommodate that 
possibility. But, to the extent that this interim final rule would 
otherwise require a proposal and solicitation of public comment, CEQ's 
view is that the ``good cause'' exception from the proposal and public 
comment requirement as codified at 5 U.S.C. 553(b)(B) obtains here. The 
President has revoked CEQ's authority to issue or maintain its NEPA 
implementing regulations and has instructed CEQ to propose rescinding 
its existing regulations.\39\ And though CEQ seeks comments to obtain 
the public's views, such comments could not alter the President's 
decision. See Section II.A. CEQ will consider comments submitted in 
response to this action and address them when issuing a final rule, 
with changes, if warranted, after consideration of the comments 
received. Accordingly, this rulemaking provides the requisite notice 
and comment, is procedurally sound, and is the product of reasoned 
decision making.
---------------------------------------------------------------------------

    \39\ E.O. 14154, sec. 5(a)-(b).
---------------------------------------------------------------------------

C. Notice-and-Comment Rulemaking Is Not Required

    Finally, CEQ's view is that there is an alternative basis for the 
procedure it is employing here. Specifically, it may be the case that 
notice and comment procedures are not required because this interim 
final rule falls within the APA exception for ``interpretative rules, 
general statements of policy, or rules of agency organization, 
procedure, or practice.'' 5 U.S.C. 553(b)(A). Although CEQ is 
voluntarily providing notice and an opportunity to comment on the 
interim final rule, the agency has determined that notice and comment 
procedures are not required for several reasons.
    As explained in Section II.B, CEQ may not possess the authority to 
issue rules binding upon agencies in the absence of E.O. 11991. Because 
E.O. 14154 rescinded E.O. 11991, this interim final rule is a 
procedural and ministerial step to implement the President's directive.
    In addition, CEQ's regulations implementing NEPA's procedural 
requirements may be characterized as rules of agency procedure and 
practice. CEQ's regulations do not dictate what environmental policies 
agencies must adopt. Rather, they prescribe how agencies should conduct 
their NEPA reviews: detailing the structure of environmental impact 
statements, specifying procedural requirements, and directing the 
timing of public comment periods.\40\ These are procedural provisions, 
not substantive environmental ones. And because procedural rules do not 
require notice and comment, absent a specific provision of law 
requiring such procedures, they do not require notice and comment to be 
removed from the Code of Federal Regulations. See 5 U.S.C. 553(b)(A). 
In fact, NEPA itself is merely a procedural statute that does not 
dictate the outcome of any particular environmental review.
---------------------------------------------------------------------------

    \40\ See 40 CFR parts 1501 and 1502.
---------------------------------------------------------------------------

    Even if CEQ's regulations were not procedural rules, they may be 
characterized as interpretative rules or general statements of policy. 
An interpretative rule provides an interpretation of a statute, rather 
than make discretionary policy choices, which establish enforceable 
rights or obligations for regulated parties under delegated 
congressional authority. General statements of policy provide notice of 
an agency's intentions as to how it will conduct itself, again without 
creating enforceable rights or obligations for regulated parties under 
delegated congressional authority. Both of these types of agency action 
are expressly exempted from notice and comment by statute. 5 U.S.C. 
553(b)(A).

IV. Request for Comments

    CEQ requests and encourages public comments on all aspects of this 
interim final rule. However, CEQ stresses that this rulemaking does not 
undertake any reconsideration of the substance of the 2020 rule, the 
Phase 1 rule, or the Phase 2 rule, nor is CEQ soliciting comment on the 
specific content of those rulemakings or the amendments to CEQ's NEPA 
regulations that they adopted. This rulemaking does not take any 
position on the agency's prior interpretations of NEPA's procedural 
requirements. CEQ will consider comments it receives and provide 
responses in a final rule, with changes, if warranted.

V. Regulatory Analyses and Notices

A. Regulatory Procedures

    As explained in Section III, by issuing an interim final rule with 
an effective date delayed by 45 days and for a 30-day public comment 
period, CEQ has satisfied any notice and comment requirements 
applicable to this action. Further, under the APA, notice and comment 
procedures are not required if an action is an interpretative rule, a 
general statement of policy, or a rule of agency organization, 
procedure, or practice. See 5 U.S.C. 553(b)(A). As discussed in Section 
III.C, CEQ has determined that the CEQ rules are rules of ``agency 
organization, procedure, or practice'' or, alternatively, interpretive 
rules. Therefore, CEQ is not required to engage in a notice and comment 
rulemaking process to remove them. Even if notice and comment 
rulemaking were required, CEQ has established good cause to waive 
notice and comment because such procedures are impracticable, 
unnecessary, and contrary to the public interest.

B. E.O. 12866, Regulatory Planning and Review, and E.O. 13563, 
Improving Regulation and Regulatory Review

    E.O. 12866 provides that OIRA will review all significant rules. 
E.O. 13563 reaffirms the principles of E.O. 12866, calling for 
improvements in the Federal Government's regulatory system to promote 
predictability, reduce uncertainty, and use the best, most innovative, 
and least burdensome tools for achieving regulatory objectives. OMB 
determined that this final rule is a significant regulatory action 
under E.O. 12866, as supplemented by E.O. 13563.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act, as amended, (RFA), 5 U.S.C. 601 et 
seq., and E.O. 13272 require agencies to assess the impacts of proposed 
and final rules on small entities. Under the RFA, small entities 
include small businesses, small organizations, and small governmental 
jurisdictions. An agency must prepare an Initial Regulatory Flexibility 
Analysis (IRFA) unless it determines and certifies that a proposed 
rule, if promulgated, would not have a significant economic impact on a 
substantial number of small entities. 5 U.S.C. 605(b). This interim 
final rule does not directly regulate small entities. Rather, the rule 
applies to Federal agencies and sets forth the process for their 
compliance with NEPA. Accordingly, CEQ hereby certifies that this 
interim final rule will not have a significant economic impact on a 
substantial number of small entities.

D. Environmental Analysis

    The CEQ regulations do not require agencies to prepare a NEPA 
analysis before establishing or updating agency procedures for 
implementing NEPA. While CEQ prepared environmental assessments for its 
promulgation of the CEQ regulations in 1978, its amendments to 40 CFR 
1502.22 in 1986, and its Phase 1 and Phase 2 regulations, in the 
development of this interim final rule, CEQ has determined that the 
rule will not have a significant effect on the environment because it 
will not authorize any specific agency activity or commit resources to 
a project that may

[[Page 10616]]

affect the environment. Therefore, CEQ does not intend to conduct a 
NEPA analysis of this interim final rule for the same reason that CEQ 
does not require any Federal agency to conduct NEPA analysis for the 
development of agency procedures for the implementation of NEPA and the 
CEQ regulations.

E. Executive Order 13132, Federalism

    E.O. 13132 requires agencies to develop an accountable process to 
ensure meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications. 
Policies that have federalism implications include regulations that 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
CEQ does not anticipate that this interim final rule has federalism 
implications because it applies to Federal agencies, not States.

F. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    E.O. 13175 requires agencies to have a process to ensure meaningful 
and timely input by Tribal officials in the development of policies 
that have Tribal implications. Such policies include regulations that 
have substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. This interim final rule is not a 
regulatory policy that has Tribal implications because it does not 
impose substantial direct compliance costs on Tribal governments 
(section 5(b)) and does not preempt Tribal law (section 5(c)).

G. Executive Order 13211, Regulations that Significantly Affect Energy 
Supply, Distribution, or Use

    Agencies must prepare a Statement of Energy Effects for significant 
energy actions under E.O. 13211. This interim final rule is not a 
``significant energy action'' because it is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy.

H. Executive Order 12988, Civil Justice Reform

    Under section 3(a) E.O. 12988, agencies must review their proposed 
regulations to eliminate drafting errors and ambiguities, draft them to 
minimize litigation, and provide a clear legal standard for affected 
conduct. Section 3(b) provides a list of specific issues for review to 
conduct the reviews required by section 3(a). CEQ has conducted this 
review and determined that this interim final rule complies with the 
requirements of E.O. 12988.

I. Unfunded Mandates Assessment

    Section 201 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531) requires Federal agencies to assess the effects of their 
regulatory actions on State, Tribal, and local governments, and the 
private sector to the extent that such regulations incorporate 
requirements specifically set forth in law. Before promulgating a rule 
that may result in the expenditure by a State, Tribal, or local 
government, in the aggregate, or by the private sector of $100 million, 
adjusted annually for inflation, in any 1 year, an agency must prepare 
a written statement that assesses the effects on State, Tribal, and 
local governments and the private sector. 2 U.S.C. 1532. This interim 
final rule applies to Federal agencies and would not result in 
expenditures of $100 million or more for State, Tribal, and local 
governments, in the aggregate, or the private sector in any 1 year. 
This action also does not impose any enforceable duty, contain any 
unfunded mandate, or otherwise have any effect on small governments 
subject to the requirements of 2 U.S.C. 1531-1538.

J. Paperwork Reduction Act

    This interim final rule does not impose any new information 
collection burden that would require additional review or approval by 
OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects

    Administrative practice and procedure; Environmental impact 
statements; Environmental protection; Natural resources.

Jomar Maldonado Vazquez,
Director for NEPA.

0
For the reasons stated in the preamble, the Council on Environmental 
Quality amends subchapter A of chapter V in title 40 of the Code of 
Federal Regulations by removing and reserving parts 1500, 1501, 1502, 
1503, 1504, 1505, 1506, 1507, and 1508.

[FR Doc. 2025-03014 Filed 2-24-25; 8:45 am]
BILLING CODE 3325-FC-P