EPA Issues Updated NEPA Procedures And New Guidance On Section 309 Reviews

What to Know

• EPA issued a memo limiting its NEPA review comments to its own statutory authorities, not broad environmental policy preferences.
• A proposed rule would update EPA’s NEPA procedures to reflect recent legislative, executive, and judicial changes, with comments due July 27.
• Most EPA actions are already exempt from NEPA, so the proposed rule’s practical impact on the agency is expected to be limited.

This past week, the U.S. Environmental Protection Agency (EPA) issued two documents that both signal an effort to align its environmental review practices with the sweeping National Environmental Policy Act (NEPA) changes and with the current administration’s deregulatory agenda. First, the Deputy Administrator issued a policy memorandum narrowing the scope of EPA’s review of other agencies’ NEPA analyses under Clean Air Act (CAA) Section 309 (the “June Memorandum”). Second, EPA published a proposed rule in the Federal Register updating its NEPA implementing procedures (the “Proposal”). The proposed rule follows earlier changes by most other federal agencies to their NEPA implementing procedures. The June Memorandum marks a policy shift intended to more narrowly align EPA’s commenting role with its own statutory authority.

EPA’s CAA Section 309 Memorandum: Refocusing EPA’s Reviews of Other Agencies’ EISs

Background

On June 24, 2026, EPA Deputy Administrator David Fotouhi issued the June Memorandum, which addresses EPA’s reviews under CAA Section 309 and limits their scope.¹

Section 309 requires EPA to review and publicly comment on environmental reviews prepared by other federal agencies, as well as certain other federal actions, insofar as the environmental impacts relate to the Administrator’s statutory authority. Under Section 309, if EPA determines that a proposal is environmentally unsatisfactory from the standpoint of public health, welfare, or environmental quality, it must publish that determination and refer the matter to the Council on Environmental Quality (CEQ).

Critics argued that EPA comment letters have expanded beyond EPA’s core authorities, effectively seeking to substitute EPA’s policy preferences for the lead agency’s judgment on issues such as land use, transportation design, and economic development.

The June Memorandum

The June Memorandum effectively aims to greater align EPA’s reviews with Section 309 and Administration policy. To that end, the June Memorandum outlines general principles for EPA to follow when drafting comment letters and lists EPA authorities relevant to comment letters.

• Regarding general principles for EPA, the June Memorandum provides that all comment letters should be focused, succinct, helpful, and grounded in its own statutory responsibilities and areas of expertise—clarifying that EPA should not evaluate a project’s compliance with other environmental statutes unless those authorities are clearly implicated by the proposed action. Additionally, the June Memorandum provides guidance on what EPA should avoid doing in its comment letters, stating that they should not include: (1) “overly broad expressions of preference for any policy or course of action not necessitated by EPA’s relevant statutory authorities”; (2) requests for additional analysis that is “unrelated to [an] environmental statute”; and (3) commentary on “hypothetical impacts which do not run afoul of applicable legal mandates.”

• To help ensure that EPA adheres to those directives, the June Memorandum also provides a recommended format for comment letters that includes sections on EPA’s previous engagement with the project, the statutory basis for EPA’s authority to comment, the substance of EPA’s comments with cited statutory authority, and recommendations for addressing identified deficiencies.

In sum, the June Memorandum seeks to foreclose EPA from attempting to play a role as a broad arbiter of environmental policy through its comment letters, instead confining its reviews to issues grounded in specific environmental statutes.

EPA’s Proposed Rule: Updating NEPA Implementing Procedures

Background

For various reasons, EPA takes few actions that trigger a review under NEPA—but it does take some. On June 25, 2026, EPA published its Proposal: Update of Procedures for Implementing the National Environmental Policy Act and Assessing the Environmental Effects Abroad of EPA Actions.² As the title suggests, this Proposal intends to overhaul EPA’s NEPA regulations at 40 C.F.R. Part 6, which have not been comprehensively updated since 2006. Other major federal agencies have already revised their NEPA procedures in response to legislative, executive, and judicial developments over the past three years that have fundamentally reshaped the NEPA landscape.

• On the legislative front, Congress amended NEPA through the Fiscal Responsibility Act of 2023 (FRA), which imposed mandatory page and time limits on Environmental Assessments (EAs) and EISs, codified key terms such as “reasonably foreseeable” and “major Federal action.”³

• On the executive side, President Trump’s Executive Order 14154 directed CEQ to rescind its longstanding NEPA regulations (implemented effective April 2025) and required federal agencies to conform their own procedures accordingly.⁴

• Finally, the Supreme Court’s unanimous May 2025 decision in Seven County Infrastructure Coalition v. Eagle County⁵, limited NEPA application, clarifying that NEPA functions as a procedural check rather than a substantive roadblock and instructing courts to afford substantial deference to agency scoping decisions.

EPA’s Proposal

The proposed rule responds to these developments and: (1) Implements the FRA’s mandatory page and time limits: capping EAs at 75 pages and one year, and EISs at 150 pages and two years (or 300 pages for actions of extraordinary complexity); (2) Conforms EPA’s regulatory definitions to the FRA’s statutory text, adding standalone definitions for terms such as “effects or impacts,” “reasonably foreseeable,” “scope,” “mitigation,” and “tiering” that had previously appeared only in CEQ’s now-rescinded regulations; (3) Removes all cross references to CEQ’s now-rescinded regulations; (4) Expressly limits EPA’s required NEPA analysis to the “proposed action at hand” and its reasonably foreseeable environmental effects consistent with Seven County; and (5) Adds a new provision allowing EPA to formally adopt other agencies’ categorical exclusions under NEPA Section 109.

However, it is worth noting that if this Proposal is finalized, it is unlikely to substantially impact EPA’s actions, as most actions are already exempt from NEPA—either by statute or under the judicially developed functional equivalence doctrine.

• Statutory Exemptions – For example, Congress has expressly exempted: (1) all EPA actions taken under the Clean Air Act; (2) nearly all EPA actions under the Clean Water Act; and (3) CERCLA response actions.

• Functional Equivalence – Additionally, courts have recognized that many of EPA’s actions are “functionally equivalent” to NEPA. As a result, those actions are exempt from NEPA review because the underlying programs already incorporate robust environmental analysis and public participation. The proposed rule affirms that this doctrine applies to EPA actions under several statutes, including RCRA, the Safe Drinking Water Act, FIFRA, TSCA, and the Marine Protection, Research, and Sanctuaries Act.

Nonetheless, certain EPA actions do remain subject to NEPA review: new source NPDES permits, CWA Title II wastewater treatment construction grants, certain research and development projects, EPA facility renovations and construction, and certain special-project grants authorized through the Agency’s annual Appropriations Act.

Comments on the proposed rule are due July 27, 2026.

Conclusion

Taken together, EPA’s proposed rule and the June Memorandum reflect a coordinated effort to recalibrate the Agency’s role in the NEPA process in line with recent statutory, regulatory, policy, and judicial developments.

Footnotes

1. Memorandum from David Fotouhi, Deputy Adm’r, U.S. Env’t Prot. Agency, to Gen. Couns., Assistant Adm’rs & Reg’l Adm’rs, Clean Air Act Section 309 and National Environmental Policy Act Section 102(2)(C) Implementation (June 24, 2026).

2. Update of Procedures for Implementing the National Environmental Policy Act and Assessing the Environmental Effects Abroad of EPA Actions, 91 Fed. Reg. 38,359 (proposed June 25, 2026) (to be codified at 40 C.F.R. pt. 6).

3. Fiscal Responsibility Act of 2023, Pub. L. No. 118-5, § 321, 137 Stat. 10, 38 (2023).

4. Exec. Order No. 14,154, Unleashing American Energy, 90 Fed. Reg. 8,353 (Jan. 29, 2025).

5. 605 U.S. 168 (2025).

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