The Nickel Report

Background

On September 29, 2025, the White House Council on Environmental Quality (CEQ) issued key guidance to federal agencies on implementation of the National Environmental Policy Act (NEPA). In a memorandum titled Implementation of the National Environmental Policy Act (Guidance), CEQ provides guidance to federal agencies on establishing or revising their agency-specific NEPA procedures. The Guidance includes a template agencies are encouraged to follow for such procedures. CEQ clarified that the Guidance and template are not mandatory or binding on federal agencies; rather, they are intended to clarify NEPA requirements and promote consistency as to its implementation.

Guidance

The Guidance begins by providing an overview of NEPA, including a discussion of recent amendments to the statute and recent case law as relevant to agency implementation of NEPA. Of particular note, the Guidance addresses recently-enacted section 112 of NEPA, titled “Project Sponsor Opt-in Fees for Environmental Reviews,” which allows project sponsors to pay a fee of 125 percent of the anticipated costs to prepare the environmental assessment or environmental impact statement in exchange for expedited NEPA review deadlines. The Guidance also provides a detailed analysis of the Supreme Court’s recent opinion in Seven County Infrastructure Coalition v. Eagle County, Colorado, emphasizing that an agency scoping “must consider the proposed action at hand and that action’s effects,” and that “an agency is not required by NEPA to analyze environmental effects from other projects separate in time, or separate in place, or that fall outside of the agency’s regulatory authority, or that would have to be initiated by a third party.”

The Guidance states that federal agencies must revise their NEPA implementing procedures to account for recent NEPA developments, including the 2025 statutory amendments providing for the Project Sponsor Opt-in Fee and caselaw. The Guidance also provides that agencies should continue to follow their existing practices and procedures for implementing NEPA, consistent with applicable law, while the revisions are ongoing. The Guidance is delineated as follows:

• Agency Procedures Template
  • CEQ developed a non-binding template for agencies preparing or updating their NEPA procedures. It is intended to support agencies and coordinate agency efforts to provide for consistency, coordination, and use of best practices in their implementation of NEPA’s procedures requirements.
  • The template does not establish new requirements, create legal obligations, or represent CEQ’s final position on how agencies should implement NEPA.
  • Agencies are encouraged to use this template in a manner that allows them flexibility to tailor it to agency-specific statutory responsibilities, organizational structures, and programmatic needs.
• CEQ Consultation Process, Interagency Review, and Public Comment
  • The Guidance provides that agencies must consult with CEQ while developing or revising their NEPA implementing procedures.
  • CEQ anticipates that it will complete initial review of agency NEPA implementing procedure proposals within 30 days from submission of a complete package.
  • The Guidance emphasizes that agencies should consult with CEQ prior to initiating interagency or public rulemaking processes.
  • The Guidance leaves to agencies’ discretion whether to promulgate implementing procedures through rulemaking for publication in the Code of Federal Regulations, or as non-regulatory documents, such as guidance or a handbook.
• CEQ’s Submission Requirements
  • The Guidance states that CEQ will not initiate a review of an agency’s documents unless all required elements are submitted.
  • The required elements differ depending on whether an agency is pursuing a rulemaking action, a non-rulemaking action, or categorical exclusions.