U.S. Army Corps of Engineers Proposes to Reissue and Modify Nationwide Permits
On June 18, the U.S. Army Corps of Engineers (Corps) published a Notice of Proposed Rulemaking that would reissue 56 of its existing Nationwide Permits (NWPs), introduce one new NWP, and make targeted modifications to the scope of certain NWPs and their terms. Key updates include a new NWP for fish passage improvements and changes to reflect recent litigation outcomes — including rescinding Florida’s program authorization and the NWPs for finfish and (in part) shellfish mariculture activities — as well as clarifying the trigger for state water quality certification under Section 401. The Corps also proposes, among other changes, an express prohibition on combining acreage limits when using more than one NWP to purportedly authorize a greater impact, and requiring restoration of areas affected by construction mats.
Department of the Interior Accelerates Permitting for Oil and Gas, Adopts 28-Day Mandate
In response to the Trump administration’s push to increase U.S. energy output by declaring a national energy emergency, the Department of the Interior (the Interior) has released plans to aid the administration’s goals. These include the Interior’s Emergency Permitting Procedures intended to accelerate and streamline review and approval of certain energy projects, primarily oil and gas. Bypassing formal rulemaking, the Interior cites its authority during emergencies to implement “alternative processes” to comply with the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the Endangered Species Act (ESA). The alternative processes are available to current and future applicants so long as they affirm in writing to the Interior that they qualify for and want to avail themselves of the expedited processes.
Fish and Wildlife Revives Incidental Take Saga Under the Migratory Bird Treaty Act
In latest saga surrounding the formidable Migratory Bird Treaty Act (MBTA or Act), the U.S. Fish and Wildlife Service on April 21, 2025, withdrew its 2021 advance notice of proposed rulemaking to potentially authorize the incidental taking or killing of migratory birds, consistent with its interpretation of the Act. The 2021 advance notice promised a new regulatory scheme possibly authorizing the incidental take of migratory birds — a practice that would have broken with pre-2017 MBTA interpretation but more practically implement the Act in response to various needs, such as infrastructure permitting and development.
President Trump’s Executive Order Seeks to Initiate Immediate Measures to Increase American Mineral Production
On March 20, 2025, President Donald J. Trump issued an executive order (the Order) directing the Department of Defense, the Department of Energy, and other agencies involved in the financing and permitting process for domestic mining production to develop plans and take specific steps to enhance domestic mineral production in the United States (the U.S.).
The Future of Environmental Review of Federal Permitting Remains Unsteady as White House Seeks to Rescind NEPA Regulations
On February 19, 2025, the Council on Environmental Quality (CEQ) submitted a proposed Interim Final Rule rescinding its regulations implementing the National Environmental Policy Act (NEPA). The Rule will become effective 45 days after its publication in the Federal Register, marking the end of nearly 50 years of CEQ regulations serving as the foundation for federal environmental reviews. This Interim Rule comes right at the deadline set by President Trump’s Executive Order (EO) 14154—Unleashing American Energy—which rescinded CEQ’s authority to issue NEPA regulations and revoked President Carter’s EO 11991, which had originally directed CEQ to promulgate implementing regulations.
EPA Publishes First-Of-Its-Kind Framework for Considering Cumulative Impacts Across Agency Actions
On November 21, 2024, the U.S. Environmental Protection Agency (EPA) published Notice of a newly developed draft framework intended to provide all EPA programs with a shared reference point for determining when and how to analyze or consider cumulative impacts—defined broadly to include the totality of exposures to combinations of environmental stressors and their effects on health and quality-of-life outcomes. Keeping pace with the Biden administration EPA’s environmental justice drive, key goals of the Interim Framework for Advancing Consideration of Cumulative Impacts include empowering EPA to (1) more fully and accurately characterize the realities communities face, (2) pinpoint the levers of decision making and identify opportunities for interventions that improve health and quality of life while advancing equity, and (3) increase meaningful engagement, improve transparency, and center actions on improving health and environmental conditions in communities.
U.S. Army Corps of Engineers Proposes Broader Historic Preservation Review
On February 9, 2024, the U.S. Army Corps of Engineers (Corps) published a proposed rule that would amend the Corps permitting regulations to follow the National Historic Preservation Act (NHPA) implementing regulations as developed interpreted by the Advisory Council on Historic Preservation (ACHP). Specifically, the Corps proposes removing its own NHPA regulations, Appendix C from 33 CFR part 325, and replacing them with those promulgated by the ACHP at 36 CFR part 800. This change may lengthen the regulatory review process and expand the scope of the Corps’ NHPA review.
Louisiana Federal Court Enjoins EPA’s Use of Disparate Impact Requirements in State Permitting Actions
On Tuesday, January 23, 2024, the U.S. District Court for the Western District of Louisiana granted a preliminary injunction filed by the State of Louisiana seeking to halt the efforts of the Environmental Protection Agency (EPA) in imposing disparate impact-based mandates under Title VI of the Civil Rights Act in permitting decisions. The state contends that Title VI prohibits only intentional discrimination and, as a result, EPA’s disparate-impact regulations in 40 C.F.R. §§ 7.10-180 are an unlawful attempt by EPA to impose its environmental justice policy goals in official permitting decisions. According to Louisiana, EPA’s efforts to advance disparate impact-based mandates without explicit statutory authorization runs afoul of the major questions doctrine, which requires agencies to act in accordance with explicit congressional mandate for matters of major political or economic significance.
