In its 25 May 2023 Sackett v. EPA decision, the U.S. Supreme Court narrowly and conclusively defined the scope of what constitutes “waters of the United States” (“WOTUS”) under the federal Clean Water Act (“CWA”). The decision ends decades of uncertainty and significantly reduces the reach of the CWA. Under the test adopted by the Sackett Court, “waters” include “only those relatively permanent, standing, or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” And WOTUS, in turn, are relatively permanent bodies of water [...]

On 9 January 2023, the Council on Environmental Quality (CEQ) released interim guidance for analyzing greenhouse gas (GHG) emissions and climate change impacts of major Federal actions undergoing National Environmental Policy Act (NEPA) review. The interim guidance applies to all Federal actions subject to NEPA and builds upon CEQ’s 2016 NEPA guidance repealed by the previous administration. The purpose of the guidance is to provide a uniform approach for Federal agencies to consider both the impacts of a project on climate change and the impacts of climate change on a project. The guidance takes effect [...]

On 20 April 2022, the Council on Environmental Quality (CEQ) published in the Federal Register a final rule revising its National Environmental Quality Act (NEPA) regulations, reinstating several key environmental review elements scrapped by the Trump Administration. The final rule, available here, adopts the changes CEQ proposed in October 2021 almost wholesale. It contains three key components. First, the rule removes the Trump-era requirement that an environmental impact statement’s (EIS) “purpose and need” section be based on the goals of the applicant and the agency’s authority, with a corresponding edit to the definition of [...]

On 7 October 2021, the Council on Environmental Quality (CEQ) published a proposed rulemaking to revise the National Environmental Quality Act (NEPA) regulations and reinstate environmental review elements that were axed by the Trump administration early last year. The key components of the rule include (i) expanding the definition of environment effects to include indirect and cumulative effects, which restores climate change as a component of NEPA review; (ii) allowing federal agencies to implement agency-specific NEPA regulations that go above and beyond the CEQ’s own regulatory requirements, so that the CEQ’s regulations provide a [...]

On 29 June 2021, the Council on Environmental Quality (CEQ) published an interim final rule extending the deadline by two years for federal agencies to implement the revised National Environmental Policy Act (NEPA) regulations promulgated by the Trump administration in July 2020 (2020 Rule). The move signals forthcoming substantive NEPA reform over the next two years, but offers little certainty in the short term for agencies and project developers currently undergoing NEPA review in a rapidly changing regulatory environment.The 2020 Rule directed agencies to adopt updated agency-specific NEPA regulations by 14 September 2021. The new [...]

This article briefly summarizes the Trump administration’s July 2020 National Environmental Policy Act (NEPA) rule, describes its uncertain status under pending administrative and judicial review, and charts a compliance path through the presently uncertain regulatory landscape for agencies and industries. In July 2020, the Council on Environmental Quality (CEQ) under President Donald Trump promulgated a comprehensive overhaul of the NEPA implementing regulations designed to narrow the scope and duration of environmental impact review required by the statute. A plethora of states and public interest groups challenged the new regulations in federal court shortly thereafter. [...]