Originally published at The Regulatory Review
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.