Challenges to the National Environmental Protection Act
Federal agency regulation revisions cause confusion as advocates work to prevent environmental impacts on historic properties.
The National Environmental Policy Act of 1969 (NEPA) was the first major environmental law in the United States. NEPA is a critical component for historic preservation by integrating a review process for federal projects that ensures federal agencies engage in early analysis of project impacts on historic resources and ensures valuable public input prior to their decision-making.
NEPA has recently been challenged by legislative amendments, major court decisions, and the actions of the current administration, resulting in inconsistent federal agency implementation regulations. This leaves many advocates wondering, “How do we continue to protect historic properties under NEPA?” While attempts to challenge NEPA are not new, recent executive, legislative, and judicial decisions have supported federal agencies’ decisions to revise their respective NEPA implementation regulations.
From the D.C. Circuit Court’s surprising November 12, 2024 decision in Marin Audubon Society to invalidate the Council on Environmental Quality’s (CEQ) NEPA regulations to the CEQ’s decision to rescind their NEPA regulations, these changes have caused great concern to those protecting environmental resources and historic properties.
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The proposed 710 freeway in California was stopped in part due to NEPA.
NEPA’s Impact on Historic Properties
NEPA plays a vital role in ensuring that federal agencies assess and consider the environmental impacts of their actions, including effects on historic properties. NEPA’s statutory provisions include a requirement that federal agencies “use all practical means” to “preserve important historic, cultural, and natural aspects of our national heritage,” 42 U.S.C. § 4331(b)(4). The procedural protections enshrined in NEPA—particularly through its public engagement requirements and analysis of alternatives—have been instrumental in preserving places of historical and cultural significance, many of which would otherwise have been lost or irrevocably damaged.
When used as intended, preservation tools like NEPA are often more effective than costly litigation, which can lead to uncertain outcomes. National Trust Deputy General Counsel Elizabeth Merritt has over 40 years of experience with historic preservation law and highlighted the importance of consultative tools during her keynote address at the 2024 Preservation Law Conference.
During her remarks, Merritt recalled major preservation wins using NEPA, including the proposed 710 freeway through South Pasadena and the Cape Wind project in Nantucket Sound, both of which faced strong public opposition and were stopped in part due to NEPA, along with violations of the Clean Air Act and Section 4(f) of the Department of Transportation Act for the 710 freeway, and in the case of Cape Wind, the Endangered Species Act.
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Executive Orders and the One Big Beautiful Bill Act
On July 4, 2025, President Donald Trump signed the One Big Beautiful Bill Act. Section 60026 of the Act amended NEPA by creating an expedited “pay-to-play" review process. Project developers can pay a fee of 125 percent of the federal agency’s anticipated review costs, and in exchange they will receive an expedited Environmental Assessment within 180 days from the date of payment or an expedited Environmental Impact Statement (EIS) within one year after publication of the notice of intent to prepare the EIS – cutting in half the deadlines that would otherwise apply. The Act does not address processes or funding for increasing capacity to handle expedited reviews, nor does it include penalties for missing the expedited review deadlines.
The amendments in the Act were not a surprise, as the White House had issued presidential actions on environmental policy prior to the Act. On January 20, 2025, the President issued an executive order “Declaring a National Energy Emergency” (E.O. 14156). In the emergency declaration, the President stated that “[America] need[s] a reliable, diversified, and affordable supply of energy to drive our Nation’s manufacturing, transportation, agriculture, and defense industries, and to sustain the basics of modern life and military preparedness.”
The declaration directed federal agencies to “identify and use all relevant lawful emergency and other authorities available to them to expedite the completion of all authorized and appropriated infrastructure, energy, environmental, and natural resources projects that are within the identified authority of each of the Secretaries to perform or to advance.”
Additionally, agencies were tasked with identifying planned or potential actions subject to the Army Corps of Engineers’ emergency permitting provisions and sending a report to the Director of the Office of Management and Budget, the Secretary of the Army, the Assistant to the President for Economic Policy, and the Chairman of CEQ within 30 days from the date of the declaration. And the agencies were directed to submit additional status reports every 30 days after that initial report, for the duration of the national emergency.
The “Unleashing American Energy” executive order (E.O. 14154), also issued on January 20, 2025) directed CEQ to propose rescinding its NEPA implementation regulations for federal agencies, which President Carter had directed CEQ to issue in a 1977 executive order. CEQ issued its initial NEPA implementing regulations in 1978 and has amended them periodically, as recently as 2024. President Trump’s order also tasked all agencies with creating a report after reviewing regulations and policies “that impose an undue burden on the identification, development, or use of domestic energy resources” or are inconsistent with the policies listed in the order.
Those policies include encouraging energy production on federal lands and waters and ensuring that energy-related regulatory requirements are “grounded in clearly applicable law.” It is clear that this latter policy is a result of recent court cases that challenged federal agency regulations on NEPA implementation.
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NEPA in the Courts
In November 2024, the D.C. Circuit Court held in Marin Audubon Society v. Federal Aviation Administration, 23-1067 (D.C. Cir. Nov. 12, 2024) that the CEQ has no authority to issue regulations implementing NEPA and that “the [Federal Aviation Administration and National Park Service’s] NEPA analysis was arbitrary and capricious.” Advocates were surprised by this decision, as the Petitioner brought the case to require an environmental analysis under the agencies’ Air Tour Management Plan for tourist flights over four national parks near San Francisco. The Parties filed a joint motion to stay the case but only related to the portion of the opinion that “set aside” the tour management program. On February 28, 2025, the United States Court of Appeals for the D.C. Circuit granted the motion to allow the FAA and National Park Service 12 months to conduct a new NEPA review.
In Seven County Infrastructure Coalition v. Eagle County, Colorado, No. 23-975, 605 U.S. ___ (May 29, 2025), the U.S. Supreme Court affirmed that NEPA is a non-binding, procedural statute, requiring agencies to prepare an adequate report, but not dictating specific substantive outcomes based on environmental review. However, the Seven County ruling did not address the creation of uniform procedures, including implementation regulations, for NEPA, instead allowing individual agencies to create their own procedures. With the Court striking down Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), courts were no longer required to give deference to federal agencies in ambiguous situations or to uphold the agency’s interpretation of a reasonable statute. These cases laid the foundation for executive changes to the NEPA regulations.
How do we continue to protect historic properties under NEPA?
Federal Agency Regulation Revisions
Through our stewardship of historic sites and partnerships with preservationists across the country, the National Trust has long advocated for thoughtful and transparent planning processes that preserve the nation’s irreplaceable cultural and historic resources. On February 25, 2025, CEQ rescinded its NEPA regulations in an interim final ruling effective April 11, 2025. The National Trust submitted comments and recommendations to CEQ when the agency announced it was turning over NEPA review to individual agencies. Since then, CEQ has issued a series of memoranda to guide federal agencies, although non-binding, on their respective NEPA implementation regulations.
In the most recent memorandum, issued on September 29, 2025, CEQ advised that, “While these revisions are ongoing, agencies should continue to follow their existing practices and procedures for implementing NEPA to the extent consistent with the text of NEPA, E.O. 14154, case law, and this guidance. Agencies should not delay pending or ongoing NEPA analyses while undertaking these revisions.”
Prior to the most recent CEQ guidelines, the National Trust submitted formal comments on August 4, 2025 to the Department of Transportation (DOT), the U.S. Army Corps of Engineers, and the U.S. Department of the Interior (DOI) in response to the proposed revisions to their respective NEPA implementation regulations. And several other agencies proposed revisions as well, including the Federal Communications Commission on August 19, 2025, which the National Trust also responded to with comments (and reply comments). Regulatory revisions included changes for consistency with Seven County Infrastructure and the recent presidential actions.
While each agency has proposed varying implementation regulations, the concerns for advocates protecting historic properties remain the same--ensuring the adequate analysis of cumulative impacts to historic and cultural resources, promoting community-driven engagement and public participation, and opposing agency attempts to create compressed, arbitrary timelines without safeguards.
Recommendations
NEPA and Section 106 reviews can and should complement each other, and their effectiveness depends on coordinated implementation rather than competing processes. However, the proposed regulations could create a delayed or inconsistent application of the Section 106 process, which should work in tandem with NEPA protections.
The National Trust outlined four recommendations to the agencies in its comment letters:
- Preserve robust opportunities for early and effective public participation;
- Ensure strong coordination between NEPA and Section 106 of the National Historic Preservation Act;
- Provide adequate time and resources for agencies to conduct environmental and cultural resource reviews, in particular, enhanced staffing resources at federal agencies and state historic preservation offices are crucial to ensuring timely and efficient reviews; and
- Retain meaningful analysis of cumulative and indirect impacts on historic resources in order to ensure compliance with the National Historic Preservation Act, since the Section 106 regulations explicitly require consideration of cumulative effects.
Next Steps
Now that the comment periods have closed for the agencies, the National Trust and other advocates are waiting to see if the agencies will respond to their recommendations in a meaningful way. The National Trust is also waiting to see whether the new NEPA implementation regulations may fall short in the protection and consideration of historic and cultural resources.
The National Trust intends to continue communications with agencies pending final regulations. In the meantime, federal agencies should work with the Advisory Council on Historic Preservation (ACHP), as CEQ did, to articulate best practices for implementing both NEPA and NHPA. Such guidance has the potential to standardize NEPA implementation across federal agencies, if agencies allow constructive engagement from ACHP.
National Trust Staff Pam Bowman, Shaw Sprague,
Elizabeth Merritt, Tom Mayes, and Christopher Cody contributed to this article.
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