Navigating NEPA Changes – Department of Commerce (NOAA/NMFS Focus): Congressional, Regulatory, and Federal Court Revisions and Rulings

Description

To date, the first year of President Donald Trump’s second term has introduced a substantial number of regulatory and legislative changes affecting the National Environmental Policy Act (NEPA), and the U.S. Supreme Court recently released their first NEPA-related decision in over 20 years. These actions have included major changes for how all sub-components of the U.S. Department of Commerce (DOC) is directed to implement NEPA, and have created substantial uncertainty regarding how NEPA practice will evolve going forward.

Regarding regulatory changes, most significantly, in February 2025, the White House Council on Environmental Quality (CEQ) issued an Interim Final Rule rescinding CEQ’s NEPA Implementing Regulations, which have guided federal NEPA compliance for over four decades. This rule was driven by two recent federal court decisions (late 2024 and early 2025), which held that CEQ never had statutory authority to issue binding NEPA regulations, as Congress did not explicitly grant this power in the NEPA statute. In response, CEQ issued a guidance memorandum directing federal agencies on how to comply with NEPA during a one-year transition period, while agencies work to revise or establish their own NEPA-specific regulations and procedures. Subsequently, in a federal register notice of availability published on July 1, 2025, the Department of Commerce (DOC) announced they had revised their DOC Administrative Order 216-6, “Implementing the National Environmental Policy Act,” which outlines the Department's responsibilities for complying with NEPA and identifies procedures specific to sub-components of DOC that implement NEPA. One of those main sub-components is the National Oceanic and Atmospheric Administration (NOAA), which also released on the same day their newly-revised NEPA Compliance Policy and Procedures contained within the Companion Manual to NOAA Administrative Order 216-6A. In addition, in the same notice NOAA announced they were soliciting comments on their proposal to establish new, and amend its existing, categorical exclusions (CEs) in its agency NEPA implementing procedures.    

These changes build upon several years of NEPA-related implementation changes, including:

• Congressional Amendments to NEPA (Fiscal Responsibility Act of 2023 – the first-ever substantive amendment to the NEPA statute).

• The Biden Administration’s “Phase 2” NEPA Rulemaking, which introduced major revisions that took effect for new NEPA reviews beginning July 1, 2024.

• Reversals and modifications of the 2020 Trump-era NEPA regulations by the Biden Administration, particularly in areas related to climate change and environmental justice analysis.

In addition to legislative and regulatory shifts, recent federal court rulings have had significant implications for NEPA implementation. Key decisions include:

1.    Seven County Infrastructure Coalition et al. v. Eagle County, Colorado, et al. (2025)

The U.S. Supreme Court ruled that federal agencies do not need to analyze indirect impacts cause by other projects separate from the proposed action undergoing NEPA review and not within an agency’s statutory control and responsibility, and that agencies are entitled to substantial deference on deciding what ultimately comprises the “reasonably foreseeable effects” of their proposed action.

2. State of Iowa et al. v. CEQ (2025)

• U.S. District Court for the District of North Dakota issued a nationwide injunction on the Biden Administration’s Phase 2 NEPA Rule, ruling that CEQ had violated the NEPA statute and the Administrative Procedure Act (APA).

• The ruling required federal agencies to revert to the NEPA regulations in effect as of June 30, 2024 (i.e., Biden’s Phase 1 rulemaking from May 20, 2022).

3. Marin Audubon Society v. Federal Aviation Administration (2024)

• U.S. Court of Appeals for the D.C. Circuit ruled that CEQ lacks statutory authority to create binding NEPA regulations, as Congress never explicitly delegated that authority in the NEPA statute.

4. Loper Bright Enterprises v. Raimondo (2024)

• The U.S. Supreme Court overturned Chevron deference, limiting the ability of federal agencies to interpret vague statutory language without clear congressional authorization.

5. Corner Post, Inc. v. Board of Governors of the Federal Reserve System (2024)

• Expanded the timeframe in which plaintiffs can challenge federal agency decisions, including NEPA-based approvals and rulemakings.

Given the scope, complexity, and implications of these removals and changes to the CEQ NEPA Implementing Regulations, NEPA Statute, and recent and upcoming federal court decisions, there will be considerable uncertainty and debate about the implications of all of this change for NEPA practice for those working at and for DOC - NOAA. In this workshop, participants will gain a comprehensive understanding of these changes to NEPA practice, including a detailed overview of the updated DOC-NOAA Companion manual containing the revised policy and procedures for NEPA compliance contained in Administrative Order 216-6 on implementing NEPA, and how these policies and procedures are both similar and different compared to previous regulations and guidance. Workshop attendees will also receive a detailed overview of recent key federal court decisions and their implications for how practitioners can best respond to this ever-evolving situation of NEPA practice changes. While some of the changes and implications are straightforward, others require in-depth analysis and discussion, and are likely to continue to generate uncertainty and potential litigation for many years into the future.

Objectives

Upon completing this workshop, participants will be able to:

  • Interpret the implications of the CEQ NEPA regulation rescission, recent key federal court rulings, and legislative amendments.

  • Distinguish between clear legal requirements and areas of uncertainty, assessing their impact on NEPA compliance.

  • Develop risk management strategies for navigating NEPA implementation without government-wide CEQ regulations and reliance solely on the NEPA Statute as amended in 2023 and the DOC-NOAA NEPA policy and procedures.

  • Understand the broader impact of recent Supreme Court rulings, including the repeal of Chevron deference and changes to legal standing and judicial review under NEPA.

Content

The basic format of this interactive workshop includes the following components:

Unit 1: NEPA’s Evolving Regulatory Landscape

• Overview of recent changes to CEQ’s NEPA Implementing Regulations, including the rescission rule.

• Summary of congressional amendments made to the NEPA statute through the Fiscal Responsibility Act of 2023.

• Comparison of Trump (2020), Biden Phase 1 (2022), and Biden Phase 2 (2024) versions of the CEQ NEPA implementing regulations.

Unit 2: Adapting to NEPA Implementation Without CEQ Regulations

• Comprehensive review of the revised DOC-NOAA NEPA implementation policy and procedures: Understanding similarities and differences from previous DOC-NOAA NEPA compliance direction

• Risk management approaches for NEPA practitioners and project proponents in this time of transition.

• Best practices for documenting compliance and minimizing litigation risks.

Unit 3: Court Decisions Impacting NEPA Implementation

• Analysis of key U.S. District Court, U.S. Court of Appeals, and U.S. Supreme Court decisions shaping NEPA compliance.

 • Detailed overview of the Seven County Infrastructure et al. Supreme Court ruling that reduces the scope of indirect impact analysis requirements and gives greater deference to agency scoping and analysis decisions

• Implications of the State of Iowa v. CEQ ruling, invalidating the Biden Phase 2 NEPA regulations.

• Discussion of the Loper Bright Enterprises ruling, eliminating Chevron deference and its effect on agency rulemaking.

Audience

Participants for this training generally include resource specialists, team leaders, decisionmakers, and other agency professionals who must understand the NEPA process to fully execute their responsibilities. This course has been specifically designed for those who work for or with DOC-NOAA, including agency environmental specialists, cooperating agencies, project applicants, tribes and tribal interests, contractors, attorneys, and NGOs.

Process

This is an interactive workshop designed to build an overall understanding of the implications of the recent changes and reforms to NEPA implementation for those working for and with DOC-NOAA. This workshop consists of a carefully designed combination of the following:

  • 70% Lecture

  • 30% Discussion

Materials

Participants receive the following:

  • Slide presentation handouts

  • Student reference manual – includes relevant statutory and regulatory documents