U.S. Army Corps of Engineers Finalizes 2026 Nationwide Permit Reissuance and Modifications
On January 8, 2026, the U.S. Army Corps of Engineers (Corps) published its final action reissuing and modifying Nationwide Permits (NWPs). This final action reissues 56 existing NWPs and issues one new NWP. The changes are modest, but include helpful clarifications for certain activities and businesses. They also include program-wide updates to certain general conditions and definitions, such as by adding “nature-based solutions,” and changes tied to recent litigation affecting certain NWPs. The new NWPs and associated conditions and definitions take effect March 15, 2026 and will expire March 15, 2031.
New York Court Orders NYDEC to Issue Climate Change Regulations by February 2026
On October 24, 2025, a New York trial court ordered the New York Department of Environmental Conservation (NYDEC) to promulgate regulations addressing climate change pursuant to the state’s 2019 Climate Leadership and Community Protection Act, 2019 N.Y. Sess. Laws Ch. 106 (S. 6599) (CLCPA). The court sided with environmental groups that argued that NYDEC’s failure to issue these rules violated a mandatory statutory duty, despite the agency’s arguments that such rules would be “infeasible” because of costs imposed on consumers. With the order requiring promulgation of the rules by February 6, 2026—mere months away—stakeholders should watch closely for details on upcoming compliance requirements.
Council on Environmental Quality Issues Long Awaited Guidance for Environmental Review Across Agencies
On September 29, 2025, the Council on Environmental Quality (CEQ) issued long-awaited guidance to formalize agencies’ individual efforts to implement the National Environmental Policy Act (NEPA). After rescinding the CEQ regulations that shaped NEPA for 40+ years and bearing witness to various agencies’ independent efforts to issue their own NEPA rules, CEQ issued new guidance to more systematically guide the agencies’ efforts. As CEQ notes, “NEPA implementation reform now has been called for, authorized, and directed by all three branches of government at the highest possible level: Congress, the President, and the Supreme Court.” The guidance reflects direction from each.
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.
Supreme Court Makes Major Course Correction, Limiting Scope of NEPA Reviews and Demanding Judicial Deference to Agency in Uinta Basin Rail Case
In Seven County Infrastructure Coalition v. Eagle County, Colorado, the Supreme Court held that under the National Environmental Policy Act (NEPA), an agency evaluating a particular project is not required to consider the effects of other future or geographically separate projects that may be built or expanded if the proposed project were approved, thus closing the door to the expansive NEPA analyses demanded by project opponents in many cases. The Court also separately stressed that the “central principle of judicial review in NEPA cases is deference,” underscoring that NEPA grants agencies discretion to determine the scope of the review and that their discretionary decisions should not be extensively second-guessed by a court. The cumulative impact of these holdings are much more than a minor course correction and should both significantly limit the scope of future NEPA analyzes and strengthen the defensibility of such analyzes in court.
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.
Three Takeaways from the Trump Administration’s Latest Push for Shifts in Domestic Energy Production
On April 8, 2025, President Trump issued three executive orders reflecting the Administration’s push for increased domestic coal production. The orders point to the surge in electricity demand from data centers and other infrastructure required to support Trump Administration goals, including becoming a leader in artificial intelligence (AI), as a key rationale. Here are three takeaways from these orders.
SEC Ends Defense of Climate-Related Disclosure Rules
On March 27, 2025, the U.S. Securities and Exchange Commission (SEC) announced that it had voted to end its defense of the final rules on the enhancement and standardization of climate-related disclosures for investors (the climate rules). This decision follows significant opposition to the climate rules from congressional leaders, trade associations, state attorneys general, and other business entities. (more…)
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.
