Rule2025-12305
Recission of Procedures for Implementing the National Environmental Policy Act (NEPA)
Primary source
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Published
July 3, 2025
Effective
July 3, 2025
Issuing agencies
Defense DepartmentNavy Department
Abstract
This interim final rule rescinds DON's regulations implementing the National Environmental Policy Act (NEPA), because the Council on Environmental Quality's (CEQ) NEPA regulations, which they were meant to supplement, have been rescinded, and because the DoD is promulgating Department-wide NEPA procedures that will guide the Navy's NEPA process. In addition, this interim final rule requests comments on this action.
Full Text
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<title>Federal Register, Volume 90 Issue 126 (Thursday, July 3, 2025)</title>
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[Federal Register Volume 90, Number 126 (Thursday, July 3, 2025)]
[Rules and Regulations]
[Pages 29453-29456]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12305]
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DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 775
[Docket ID: USN-2025-HQ-0004]
RIN 0703-AB31
Recission of Procedures for Implementing the National
Environmental Policy Act (NEPA)
AGENCY: Department of the Navy (DON), Department of Defense (DoD).
ACTION: Interim final rule.
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SUMMARY: This interim final rule rescinds DON's regulations
implementing the National Environmental Policy Act (NEPA), because the
Council on Environmental Quality's (CEQ) NEPA regulations, which they
were meant to supplement, have been rescinded, and because the DoD is
promulgating Department-wide NEPA procedures that will guide the Navy's
NEPA process. In addition, this interim final rule requests comments on
this action.
DATES: This interim final rule is effective on July 3, 2025. Comments
must be received on or before August 4, 2025.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulation Identifier Number (RIN) number and title, by any of the
following methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Mail: Department of Defense, Office of the Assistant to
the Secretary Defense for Privacy, Civil Liberties, and Transparency,
Regulatory Directorate, 4800 Mark Center Drive, Mailbox #24, Suite
05F16, Alexandria, VA 22350-1700.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions available for public viewing on the
internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> as they are received without
change, including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Farak, Office of the Deputy
Assistant Secretary of the Navy (Environment and Mission Readiness),
703-695-4216.
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments: All comments received before the
close of
[[Page 29454]]
the comment period are available for viewing by the public. We post all
comments received before the close of the comment period on the
following website as soon as possible after they have been received:
<a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the search instructions on that
website to view public comments. DON will not post on <a href="http://www.regulations.gov">http://www.regulations.gov</a> public comments that make threats to individuals or
institutions or suggest that the commenter will take actions to harm an
individual. We will post acceptable comments from multiple unique
commenters even if the content is identical or nearly identical to
other comments.
Plain Language Summary: In accordance with 5 U.S.C. 553(b)(4), a
plain language summary of this rule may be found at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>.
I. Background
Title 32 CFR part 775 provides guidance for implementing the
procedural provisions of NEPA for the DON. The regulation is applicable
to the DON, including the Office of the Secretary of the Navy, and Navy
and Marine Corps commands, operating forces, shore establishments, and
reserve components. The purpose of 32 CFR part 775 was to implement the
provisions of NEPA (42 U.S.C. 4321 et seq.), the CEQ's NEPA
implementing regulations (formerly codified at 40 CFR parts 1500-1508),
and Department of Defense Instruction (DoDI) on Environmental Planning
and Analysis (DoDI 4715.9). See 32 CFR 775.1(a). However, the CEQ's
regulations have been repealed, effective April 11. See Removal of
National Environmental Policy Act Implementing Regulations, (90 FR
10610; Feb. 25, 2025). This action was necessitated by and is
consistent with Executive Order (E.O.) 14154, Unleashing American
Energy (90 FR 8353; January 20, 2025), in which President Trump
rescinded President Carter's E.O. 11991, Relating to Protection and
Enhancement of Environmental Quality (42 FR 26967; May 24, 1977) which
was the basis CEQ had invoked for its authority to make rules to begin
with. DON's regulations, which were designed to implement those CEQ
regulations, thus stand in obvious need of fundamental revision.
President Trump in E.O. 14154 further directed agencies to revise their
NEPA implementing procedures, consistent with the E.O., including its
direction to CEQ to rescind its regulations.
In addition, Congress recently amended NEPA in significant part, in
the Fiscal Responsibility Act of 2023, Public Law 118-5, signed on June
3, 2023, in which Congress added substantial detail and direction in
Title I of NEPA, including in particular on procedural issues that CEQ
and individual acting agencies had previously addressed in their own
procedures. The DON recognized the need to update its regulations in
light of these significant legislative changes. Since the DON's
regulations were originally designed as a supplement to CEQ's NEPA
regulations, the DON had been awaiting CEQ action before revising its
regulations, consistent with CEQ direction. See 40 CFR 1507.3(b)
(2024); see also 86 FR 34154 (June 29, 2021). However, with CEQ's
regulations now rescinded, and with the DON's NEPA implementing
procedures still unmodified more than two years after this significant
legislative overhaul, it is exigent that the DON move quickly to
conform its procedures to the statute as amended.
Finally, the Supreme Court on May 29, 2025 issued a landmark
decision, Seven County Infrastructure Coalition v. Eagle County,
Colorado, 145 S. Ct. 1497 (2025), in which it decried the
``transform[ation]'' of NEPA from its roots as ``a modest procedural
requirement,'' into a significant ``substantive roadblock'' that
``paralyze[s]'' ``agency decisionmaking.'' Id. at 1507, 1513
(quotations omitted). The Supreme Court explained that part of that
problem had been caused by decisions of lower courts, which it
rejected, issuing a ``course correction'' mandating that courts give
``substantial deference'' to reasonable agency conclusions underlying
their NEPA processes. Id. at 1513-14. But the Court also acknowledged,
and through its course correction sought to address, the effect on
``litigation-averse agencies'' which, in light of judicial
``micromanage[ment],'' had been ``tak[ing] ever more time and . . .
prepar[ing] ever longer EISs for future projects.'' Id. at 1513. The
DON, thus, is issuing this interim final rule to align its actions with
the Supreme Court's decision and streamline its process of ensuring
reasonable NEPA decisions. This revision has thus been called for,
authorized, and directed by all three branches of government at the
highest possible levels. DoD has elected to respond to these
instructions by promulgating Department-wide NEPA procedures,
Department of Defense National Environmental Policy Act Implementing
Procedures, which will guide the DON's NEPA process henceforth. The
Supreme Court could not have been clearer in Seven County that NEPA is
a procedural statute. See 145 S. Ct. at 1507 (``NEPA is a purely
procedural statute.''); id. at 1510 (``NEPA is purely procedural . . .
. NEPA `does not mandate particular results, but simply prescribes the
necessary process' for an agency's environmental review of a
project;''); id. at 1511 (NEPA is a purely procedural statute''); id.
at 1513 (NEPA is properly understood as ``a modest procedural
requirement''); id. at 1514 (``NEPA' status as a purely procedural
statute''); see also id. at 1507 (``Simply stated, NEPA is a procedural
cross-check, not a substantive roadblock.''). Mindful of this, DoD has
decided that the flexibility to respond to new developments in this
fast-evolving area of law, afforded by using non-codified procedures,
outweighs the public-transparency virtues of codifying its regulations
going forward. Notably, DoD can--and will--ensure that accessibility to
the public by posting these procedures online, which removes the upside
of codification. By contrast, not codifying its procedures will enable
it to rapidly update these procedures in response to future court
decisions (such as Seven County), Presidential directives, or the needs
of the services. The use of non-codified procedures is, moreover,
consistent with the approach that several other Federal agencies have
used for decades.
DoD has, correspondingly, directed all military departments to
repeal their respective NEPA implementing regulations by June 30, 2025,
per a May 21, 2025, memorandum. Thus, the DON is rescinding its NEPA
implementing regulations at 32 CFR part 775. The DON is furthermore
taking this action because the CEQ NEPA regulations, which the DON
regulations were intended to supplement and implement, were rescinded
and thus the DON's regulations are incomplete on their own. Therefore,
the DON is rescinding 32 CFR part 775. Concurrent with this action, DoD
plans to issue separate DoD-wide NEPA procedures, which will apply to
DON. Those DoD-wide NEPA procedures will include the list of
categorical exclusions that are currently listed in 32 CFR 775.6(f),
which will continue to be used by DON in its implementation of NEPA.
The DON acknowledges that third parties may claim to have reliance
interests in the DON's existing NEPA procedures. But revised agency
procedures will have no effect on ongoing NEPA reviews, where the DON,
following CEQ guidance, has held it will continue to apply existing
applications. Moreover, as the Supreme Court has just explained, NEPA
``is a purely procedural statute'' that ``imposes no
[[Page 29455]]
substantive environmental obligations or restrictions.'' Seven County,
145 S. Ct. at 1507. Any asserted reliance interests grounded in
substantive environmental concerns are not in accord with the best
meaning of the law and are entitled to ``no . . . weight.'' Dep't of
Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891,
1914 (2020).
Because reliance interests are inherently backward-looking, it is
unclear how any party could assert reliance interests in prospective
procedures. To the extent such interests exist, the DON concludes that
they are ``outweigh[ed]'' by ``other interests and policy concerns.''
Id. Namely, the complex web of regulations that preexisted the 2023
amendments to NEPA and the new Procedures repeatedly ``led to more
agency analysis of separate projects, more consideration of attenuated
effects, more exploration of alternatives to proposed agency action,
more speculation and consultation and estimation and litigation,''
which in turn has meant that ``[f]ewer projects make it to the finish
line,'' or even ``to the starting line.'' Seven County, 145 S. Ct. at
1513-14. This has increased the cost of projects dramatically, ``both
for the agency preparing the EIS and for the builder of the project,''
resulting in systemic harms to America's infrastructure and economy.
Id. at 1514. Correspondingly, the wholesale revision and simplification
of this regime, effectuated by the DoD's new NEPA procedures, is
necessary to ensure efficient and predictable reviews, with significant
upsides for the economy and for projects of all sorts. This set of
policy considerations drastically outweighs any claimed reliance
interests in the preexisting procedures.
The DON has taken this action as part of DoD's broader approach to
revising its implementation of NEPA, in which DoD and its components
have revised their NEPA implementing procedures to conform to the 2023
statutory amendments, to respond to President Trump's direction in E.O.
14154 to, ``[c]onsistent with applicable law, prioritize efficiency and
certainty over any other objectives, including those of activist
groups, that do not align with the policy goals set forth in section 2
of [that] order or that could otherwise add delays and ambiguity to the
permitting process,'' and to address the pathologies of the NEPA
process and NEPA litigation as identified by the Supreme Court. Where
DoD and its components have retained an aspect of their preexisting
NEPA implementing procedures, it is because that aspect is compatible
with these guiding principles; where DoD and its components have
revised or removed an aspect, it is because that aspect is not so
compatible.
II. Publication as an Interim Final Rule
A. Notice-and-Comment Rulemaking Is Not Required
The DON is repealing its prior procedures and practices for
implementing NEPA, a ``purely procedural statute'' which `` `simply
prescribes the necessary process' for an agency's environmental review
of a project--a review that is, even in its most rigorous form, ``only
one input into an agency's decision and does not itself require any
particular substantive outcome.'' Seven County, 145 S. Ct. at 1507,
1511. ``NEPA imposes no substantive constraints on the agency's
ultimate decision to build, fund, or approve a proposed project,'' and
``is relevant only to the question of whether an agency's final
decision''--i.e., that decision to authorize, fund, or otherwise carry
out a particular proposed project or activity--``was reasonably
explained.'' Id. at 1511. As such, notice and comment procedures are
not required because this revision falls within the Administrative
Procedure Act (APA) exception for ``rules of agency organization,
procedure, or practice.'' 5 U.S.C. 553(b)(A). DON's existing
regulations do not dictate what outcomes such consideration must
produce, nor do they impose binding legal obligations on private
citizens. Rather, the DON's NEPA-implementing regulations at 32 CFR
part 775 are procedural, outlining the policies and responsibilities of
the DON, including the Office of the Secretary of the Navy, and Navy
and Marine Corps commands, operating forces, shore establishments, and
reserve components. These regulations describe the DON responsibilities
for preparation, review, and approval of environmental documents
prepared under NEPA, rather than establishing substantive requirements
binding the public. As such, they do not require notice and comment for
removal or replacement.
These are procedural provisions, not ones that impose substantive
environmental obligations or restrictions. Thus, because procedural
rules do not require notice and comment, they do not require notice and
comment to be removed from the Code of Federal Regulations. See 5
U.S.C. 553(b)(A).\1\
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\1\ Just so, DoD's new procedures will also be purely
procedural, guiding the Department's own compliance with NEPA.
Indeed, it is hard to see how they could be otherwise, since the
Supreme Court has recently repeatedly emphasized that ``NEPA is a
purely procedural statute.'' Seven County, 145 S. Ct. at 1507; see
id. at 1510 (``NEPA is purely procedural . . . . NEPA `does not
mandate particular results, but simply prescribes the necessary
process' for an agency's environmental review of a project;''); id.
at 1511 (NEPA is a purely procedural statute''); id. at 1513 (NEPA
is properly understood as ``a modest procedural requirement''); id.
at 1514 (``NEPA's status as a purely procedural statute''); see also
id. at 1507 (``Simply stated, NEPA is a procedural cross-check, not
a substantive roadblock.''). Procedures for implementing a purely
procedural statute must be, by their nature, procedural rules.
Surely cannot be legislative rules; as such, they do not need to be
promulgated via notice-and-comment rulemaking. See 5 U.S.C.
553(b)(A).
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Moreover, even if (and to the extent that) DON's regulations were
not procedural rules, they may be characterized as interpretative rules
or general statements of policy under 5 U.S.C. 553(b)(A). An
interpretative rule provides an interpretation of a statute, rather
than making discretionary policy choices that establish enforceable
rights or obligations for regulated parties under delegated
congressional authority. 32 CFR 775.2 (``Definitions''), for instance,
may be classified as such. General statements of policy provide notice
of an agency's intentions as to how it will enforce statutory
requirements, again without creating enforceable rights or obligations
for regulated parties under delegated congressional authority. The
prefatory sections DON's procedures, for instance, such as 32 CFR 775.3
(``Policy''), may be classified as general statements of policy. Both
of these types of agency action are expressly exempted from notice and
comment by statute., 5 U.S.C. 553(b)(A), and do not require notice and
comment for removal.
Accordingly, although DON is voluntarily providing notice and an
opportunity to comment on this interim final rule, the agency has
determined that notice-and-comment procedures are not required. The
fact that DON previously undertook notice-and-comment rulemaking in
promulgating these regulations is immaterial: As the Supreme Court has
held, where notice-and-comment procedures are not required, prior use
of them in promulgating a rule does not bind the agency to use such
procedures in repealing it. Perez v. Mortg. Bankers Ass'n, 575 U.S. 92,
101 (2015).
B. DON Has Good Cause for Proceeding With an Interim Final Rule
Moreover, the DON also finds that, to the extent that prior notice
and solicitation of public comment would otherwise be required or this
action could not immediately take effect, the
[[Page 29456]]
need to expeditiously replace its existing rules satisfies the ``good
cause'' exceptions in 5 U.S.C. 553(b)(B) and (d). The APA authorizes
agencies to issue regulations without notice and public comment when an
agency finds, for good cause, that notice and comment is
``impracticable, unnecessary, or contrary to the public interest,'' 5
U.S.C. 553(b)(B), and to make the rule effective immediately for good
cause. 5 U.S.C. 553(d)(3). As discussed in Section I, above, DON's
prior rules were promulgated to supplement CEQ's NEPA regulations.
Following the rescission of CEQ's regulations, the DON's current rules
are left hanging in air, supplementing a NEPA regime that no longer
exists. The DON, thus far and as a temporary, emergency measure, has
been continuing to operate under its prior procedures as if the CEQ
NEPA regime still existed. This is not, however, tenable in the long
term. As soon as proper procedures are available--which they now are,
in the form of DoD's Department-wide procedures--this makeshift regime
needs to be rescinded immediately. Because of this need for speed and
certainty, notice-and-comment is, to the extent it was required at all,
impracticable and contrary to the public interest.
For the same reasons stated in the present section, above, DON
finds that ``good cause'' exists under 5 U.S.C. 553(d)(3) to waive the
30-day delay of the effective date that would otherwise be required.
This interim final rule will accordingly be effective immediately.
C. DON Solicits Comment
As explained above, notice and comment is not required prior to
issuing this rule because DON's NEPA procedures were procedural and
because, even if comment were required under the APA, good cause exists
to forego it. Nevertheless, DON has elected voluntarily to solicit
comment on this action. DON is soliciting comment on this interim final
rule, and may make further revisions to this action, if DON's review of
any comments submitted suggests that further revisions are warranted.
Commenters have 30 days from the date of publication of this interim
final rule to submit comments.
IV. Regulatory Compliance Analysis
A. E.O. 12866, ``Regulatory Planning and Review,'' and E.O. 13563,
``Improving Regulation and Regulatory Review''
E.O.s 12866 and 13563 direct agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health, and safety
effects; distribution of impacts; and equity). The Office of Management
and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA)
has determined that this rulemaking is significant under section 3(f)
of E.O. 12866.
B. E.O. 14192, ``Unleashing Prosperity Through Deregulation''
E.O. 14192 was issued on January 31, 2025, and requires that ``any
new incremental costs associated with new regulations shall, to the
extent permitted by law, be offset by the elimination of existing costs
associated with at least 10 prior regulations.'' This rule is expected
to be an E.O. 14192 deregulatory action.
C. Congressional Review Act (5 U.S.C. 801 et seq.)
OIRA has determined that this rulemaking does not meet the criteria
set forth in 5 U.S.C. 804(2) under Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of 1996 (also known as the
Congressional Review Act). This action, in any event, is not a rule at
all under 5 U.S.C. 804(3)(C).
D. Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
The rule does not contain any information collection requirements
that require the approval of the OMB under the Paperwork Reduction Act
(44 U.S.C. chapter 35).
E. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The Secretary of the Navy certified that this rule is not subject
to the Regulatory Flexibility Act (5 U.S.C. 601) because it will not
have a significant economic impact on a substantial number of small
entities. Also, the rule repeals the DON's NEPA implementing
regulations at 32 CFR part 775, which are procedural, outlining
procedures for environmental impact analysis for all DON activities and
programs. Therefore, the Regulatory Flexibility Act, as amended, does
not require us to prepare a regulatory flexibility analysis. See 5
U.S.C. 603(a) and 604(a).
F. Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1532) requires agencies to assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. That threshold
is currently approximately $206 million. This rulemaking will not
result in the expenditure by State, local, or Tribal governments, in
the aggregate, or by the private sector, in excess of the threshold.
Thus, no written assessment of unfunded mandates is required.
G. E.O. 13132, ``Federalism''
The DON has determined that this action does not contain policies
with federalism or ``takings'' implications as those terms are defined
in E.O. 13132 and E.O. 12630, respectively. This action does not have
federalism implications. It will not have substantial direct effects on
the States, on the relationship between the national Government and the
States, or on the distribution of power and responsibilities among the
various levels of Government. This action contains no Federal mandates
for State and local Governments and does not impose any enforceable
duties on State and local Governments. This action addresses only
internal DON procedures for implementing NEPA.
H. E.O. 13175, ``Consultation and Coordination With Indian Tribal
Governments''
E.O. 13175 establishes certain requirements that an agency must
meet when it promulgates an interim final rule (and subsequent final
rule) that imposes substantial direct compliance costs on one or more
Indian Tribes, preempts Tribal law, or effects the distribution of
power and responsibilities between the Federal Government and Indian
Tribes. This rule will not have a substantial effect on Indian Tribal
Governments.
List of Subjects in 32 CFR Part 775
Administrative practice and procedure, Environmental impact
statements, Environmental protection, National Defense, Natural
resources.
32 CFR Chapter VI
PART 775--[REMOVED]
0
Accordingly, by the authority of 5 U.S.C. 301, 32 CFR part 775 is
removed.
Dated: June 27, 2025.
A.R. DeMaio,
Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy,
Federal Register Liaison Officer.
[FR Doc. 2025-12305 Filed 7-1-25; 2:30 pm]
BILLING CODE 3810-FF-P
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