The NEPA Everyone Is Arguing About Doesn’t Exist Anymore

The legal and institutional framework that gave the National Environmental Policy Act (NEPA) its practical force has been largely dismantled.

In the past, NEPA reform might have been considered a rollback. Now it’s better understood as a rescue mission.

The law has changed. The Supreme Court has tightened the leash on lower courts and agency analysis. Other federal courts have undercut the legal foundations of NEPA’s regulatory regime, vacating recent regulations and concluding that the Council on Environmental Quality (CEQ) lacks authority to issue binding rules.

Institutions are responding. Trump’s CEQ rescinded NEPA’s regulations. Agencies have invoked sweeping “emergency” authorities to skip long-established steps in environmental review. New agency NEPA procedures omit mention of environmental justice.

Yet much of the debate over NEPA reform proceeds as if none of this has happened. WE ACT for Environmental Justice portrays NEPA reform as an attack on communities with developers as inevitable beneficiaries. NRDC has argued that “permitting reform” is a tool of oil and gas to “slash...community protections.”

These views reflect an understanding of NEPA that no longer matches its current legal and institutional reality. Changing the statute is now perhaps the only viable way to restore durable protections that NEPA’s defenders care most about. That’s especially true of community influence over major projects.

NEPA’s status quo has changed, leaving communities less protected.

It's underappreciated how few words and mandates NEPA contains. Much of what NEPA does or did comes from regulations or the courts. Because these core features were never codified, their disappearance is perfectly consistent with NEPA when stripped to its statutory core. There is, for instance, no requirement in NEPA for a draft Environmental Impact Statement (EIS). The draft EIS is arguably the key NEPA document that notifies the public of environmental impacts and invites their review and comment. But it’s not in the statute.

Similarly, in the original statute, federal agencies didn’t need to solicit comments from the public. In 2023, Congress added a provision to require public comment at the project announcement stage. But this comes before the agency has identified detailed environmental impacts for the public to respond to.

The statute also doesn’t dictate any follow-up to determine whether the project developers built the project as promised. So there’s no post hoc assessment of any mitigation measures the developers agreed to with the community.

All of that and more came from the NEPA regulations the courts struck down and the Trump Administration rescinded.

Perhaps more important than the specific requirements, the regulations embedded normative commitments to public engagement. For example, Biden’s 2024 regulations encouraged agencies to tailor their outreach to communities and ensure early and iterative contacts. Those regulations also mandated that agencies consider distributional and disproportionate impacts on communities with environmental justice concerns.

But those regulatory commitments are gone and probably can’t come back. In 2024 and 2025, federal courts said what NEPA aficionados knew all along: the statute didn’t give authority to the CEQ to create binding NEPA regulations. As the final rule rescinding CEQ’s NEPA regulations noted in January, "Congress has not delegated, whether by ratification or otherwise, any rulemaking authority to CEQ.” This assessment is hard to dispute. CEQ’s regulations rested on a synthesized legal foundation in a Carter-era Executive Order that was useful for the government, the courts, and the public, until it wasn’t. So the Trump Administration rescinded the regulations with the courts’ support. As things now stand, there is no clear or politically durable path to recreating the regulatory environment that enshrined and emphasized community protections.

It’s possible that court doctrine will compel agencies to extend some protections to communities. But without the NEPA regulations, which helped codify judicial precedent, it’s difficult to predict how agencies will behave.

Trump Administration actions to date leave reason for concern. On several occasions, the Department of Interior finished its NEPA process without a draft EIS or public comment on that draft. In mid-2025, Interior responded to Trump’s “national energy emergency” declaration by deploying “alternative arrangements” to approve the Black Butte Federal Coal Lease without a draft EIS. Interior used its “emergency” procedures to approve the Velvet-Wood uranium and vanadium mine after an 11-day review, precluding meaningful public comment.

These actions are, as to be expected, already the subject of litigation. Rescinding regulations without reforming the original statute does not necessarily improve final outcomes for infrastructure investment. Both NEPA’s critics within the Trump Administration and its defenders outside it are continuing to rely on court doctrine to define the constraints the law imposes. This is a recipe for further litigation and judicial uncertainty, not meaningful reform nor a defense of the protections previously provided by NEPA.

To wit, NEPA practitioners in the agencies have found that the usual pipeline of public comment periods has disappeared, which raises the prospect that the administration is systematically avoiding draft EISs. Although these maneuvers may be legally vulnerable, it evinces an environment in which agency leaders often do not see a need for basic public engagement.

The result of all this is a version of NEPA in which:

• Draft EISs are discretionary

• Public comment can be narrowed

• Meaningful opportunities for comment can be eliminated

• Community engagement has no binding interagency standards

• Agencies have no obligation to address climate change or environmental justice

When NEPA processes become discretionary, outcomes degrade for both communities and projects. Without predictable opportunities for early and meaningful input, communities are less able to shape project design, identify local risks, or secure mitigation commitments. Concerns that could have been addressed upstream instead surface late as political opposition, litigation, or state and local intervention. At that point, projects are harder to modify and more likely to fail. For developers, this dynamic increases uncertainty and the risk of costly delays or cancellations. For communities, it reduces influence over decisions that affect them most. A weakened public engagement process does not produce faster or fairer outcomes. It produces more conflict, less trust, and worse results for all involved.

Critics may argue this concern is overstated. Agencies will still face court review, and political pressure can enforce norms. Agencies may still hold comment periods to strengthen their legal defenses. But that incentive depends on litigation risk remaining meaningful, which may not be the case as the new framework shakes out. And in any case, the problem is that even if some protections persist through agency discretion or judicial review, they’re inherently uneven and unstable. They’ll vary across agencies, shift across administrations, and won’t be enforced as a consistent statutory baseline.

NEPA reform offers the chance to create a durable floor for public participation that doesn’t depend on court enforcement or agency discretion. A legislative deal this Congress could codify requirements that never actually existed in the original statute, such as a requiring draft EISs for major projects, guaranteeing meaningful public comment tied to those documents, and aligning judicial standing with participation in that process.

A lesson from the SPEED Act to restore public engagement

NEPA reform is an opportunity for Congress to re-establish a baseline for public participation so that community preferences are heard, and projects won’t be upended by inadequate information.

And that’s where the SPEED Act comes in. Although Breakthrough criticized aspects of the SPEED Act, it contained clever drafting that Congress could build on. Specifically, the drafters included a provision that would limit NEPA litigation to parties who submitted comments on an environmental document. In doing so, the bill functionally required participation at the draft EIS stage in order to sue.

This maneuver was a two-fer. It created a powerful incentive for agencies to, first, publish draft EIS’s so they could, second, hold a public comment period. This way, agencies would drive complaints into comments on the EIS, where members of the public knew they had to complain to preserve the option to sue. In turn, an agency gives itself the opportunity to address would-be plaintiffs’ concerns in a final EIS before someone sues. Assuming the public has a fair chance to know about and provide comment on the EIS, this makes for better outcomes all around.

Many Democrats opposed the SPEED Act provision as written. The bill required a “unique” public comment to establish standing; a commenter had to raise a distinct issue not already submitted by others. The goal was to prevent mass comment campaigns from automatically generating thousands of potential plaintiffs. In practice, the requirement risked excluding people with legitimate, shared concerns–about noise, pollution, traffic or anything else–from accessing the courts.

A better approach would be to require substantive participation, not unique participation. To preserve standing, a commenter should be required to submit a comment on the draft EIS. They must also raise or associate themselves with an issue or claim in the administrative record. That standard ensures that legal claims are surfaced at a time when agencies can respond without excluding people simply because others share their concerns.

Multiple commenters could then raise the same issue and preserve standing. But that does not expand the universe of claims before the court. Courts already routinely consolidate duplicative claims and plaintiffs. What matters for judicial review is the set of legal issues preserved in the record, not the number of people raising them.

The goal should be to channel disputes into the comment process, not to artificially limit participation in either the comment period or court process. Replacing the “uniqueness” requirement with a record-based participation standard would incentivize agencies to produce draft environmental reviews and solicit meaningful input, ensure that claims are raised early, and avoid shutting out communities with shared concerns.

Democrats were also concerned that limiting standing in this way would disadvantage people or communities without the means or technical knowledge to participate. This concern can be addressed with requirements that an agency conduct early, iterative outreach, and provide accessible materials in local languages in multiple formats and platforms.

NEPA defenders should support Democratic committee efforts

It's important to recognize that many Democrats want NEPA reform. NEPA is a palpable burden on development of all kinds–highways, broadband internet, microchip fabs, geothermal energy, wind energy. There’s not a political coalition now or in the future that would sign onto drastically expanding NEPA, as some draft legislation would do.

It’s also important to recall how far NEPA has fallen when we consider what might realistically emerge from current negotiations. In Reboot NEPA, we advocated for codifying and clarifying the process for public engagement under NEPA. And the permitting reform negotiations currently underway may yet improve public engagement relative to where we are.

NEPA defenders are right to ally with Democrats to pursue their priorities. And despite their minority, thanks to the structure of the Senate, Democrats hold considerable leverage over the outcomes here. As the leader of negotiations in the Senate Environment and Public Works Committee, and the champion of the public engagement-forward COLLABORATE Act, Senator Sheldon Whitehouse has community protections in mind.

That said, the GOP in the Senate, House and White House are unlikely to accept half-measures reining in judicial review. A realistic permitting reform package will likely include shortened statute of limitations, standing limits, and changes to remedies that would limit courts’ ability to stop projects.

This creates space for a reform package that pairs limits on litigation with statutory guarantees for public participation.

Reform, Rescue, or Reboot?

When a fragged, buggy system shuts down, the best course of action is often to simply reboot it. That remains the case with NEPA, a foundational federal environmental framework, now burdened by decades of accumulating and contradictory norms, judicial precedent, and executive guidance, mostly recently the Trump administration’s recissions and the courts’ decisions.

The reforms that ultimately emerge from current negotiations may not strengthen public participation as much as we proposed in our comprehensive “Reboot NEPA” framework. But even a narrower package that restores a statutory floor for engagement while constraining the litigation dynamics that undermine outcomes would represent a meaningful, and durable, improvement over the status quo.

NEPA’s defenders face a changed reality. The legal and institutional framework that once guaranteed meaningful public engagement has been dismantled. In its place is a system defined by discretion, inconsistency, and uncertainty.

The choice is not between preserving NEPA and reforming it. It’s between allowing those protections to erode or securing some of them in statute. Rescuing elemental functions of NEPA now requires doing what the statute never did: guaranteeing meaningful public participation while constraining the litigation dynamics that threaten development.