Endangered Species Law & Policy

On February 24, 2026, the Department of the Interior (DOI) rescinded most of its regulations implementing the National Environmental Policy Act (NEPA). The rescission may change how DOI conducts analysis for projects that require both NEPA and Endangered Species Act (ESA) analysis. The following questions and answers provide context for what this action means and its potential impacts.

What is NEPA?

The National Environmental Policy Act (NEPA) is a federal statute that requires Federal agencies to assess the environmental effects of proposed major Federal actions. 42 U.S.C. § 4332. NEPA establishes procedural rather than substantive requirements to study environmental impacts and inform the public. This means that Federal agencies are required to consider the environmental effects of a project but are not required to choose the project with the smallest environmental impacts.

What is the Council on Environmental Quality (CEQ)?

NEPA established the Council on Environmental Quality (CEQ) as a division within the Executive Office of the President to coordinate with Federal agencies regarding their obligations under NEPA. 42 U.S.C. § 4342. CEQ also develops and provides guidance on the implementation of NEPA to ensure timely environmental review and permitting processes across the Federal government.

What happened in the 2024 Marin Audubon Society case?

As we previously reported, in Marin Audubon Society v. Federal Aviation Administration, 121 F.4th 902 (D.C. Cir. 2024), the D.C. Circuit court issued a ruling invalidating CEQ’s NEPA regulations. The court found that CEQ gained its rulemaking authority from an Executive Order from 1977, issued by President Jimmy Carter (Carter E.O.), rather than NEPA itself. The Carter E.O. directed CEQ to issue regulations implementing NEPA and required Federal agencies to comply with those regulations. Marin Audubon Society arose after the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which eliminated the Chevron “substantial deference” standard when reviewing agency actions. The court in Marin Audubon Society found that the lack of a clear nexus between the regulation and delegation of legislative authority in the statute required the invalidation of CEQ’s NEPA regulations. The court did not address the impact of the Marin Audubon Society case on NEPA regulations issued by individual federal agencies.

What is Executive Order 14154?

Following the Marin Audubon Society decision, on January 20, 2025, President Trump issued Executive Order 14154, titled “Unleashing American Energy” (E.O. 14154). E.O. 14154 revoked the Carter E.O. and required CEQ to issue new NEPA guidance and implement regulations that expedite permitting approvals.

To comply with E.O. 14154, CEQ revoked its regulations for NEPA procedures on January 8, 2026. CEQ determined that without the Carter E.O., CEQ does not have authority from the plain text of NEPA to issue binding rules on Federal agencies. Instead, CEQ’s authority is limited to authority provided in the NEPA language and Executive Orders.

Agencies such as DOI and the Department of Defense maintained their own regulations to supplement CEQ’s NEPA regulations. However, since CEQ revoked its NEPA regulations, the agency-specific regulations are no longer in compliance with NEPA. On February 24, 2026, DOI issued a final rule titled “National Environmental Policy Act Implementing Regulations” (Final Rule), revising its NEPA regulations.

How have DOI’s NEPA regulations changed?

In the Final Rule, DOI rescinded most of its NEPA implementing regulations. DOI retained regulations regarding emergency responses, categorical exclusions, applicant- and contractor-prepared environmental documents, designation of lead agencies, and designation of cooperating agencies. Additionally, DOI issued a revised copy of its handbook providing non-regulatory guidance for regulated entities regarding DOI’s NEPA implementation procedures.

Categorical Exclusions

Categorical exclusions represent a category of actions that an agency has determined will generally not have a significant impact on the environment, and which therefore do not require NEPA review. Categorical exclusions allow agencies to streamline permitting procedures by avoiding detailed NEPA review for actions with low environmental impacts. In the Final Rule, DOI retained regulations that established DOI categorical exclusions and established the procedures necessary to rely on the categorical exclusion to comply with NEPA. However, DOI revised the categorical exclusions to provide more guidance on the actions that fall within each category.

DOI Handbook

In addition to the Final Rule, DOI concurrently released an updated version of the Department of the Interior Handbook: National Environmental Policy Act Implementing Procedures (DOI Handbook). Although the release was an agency action separate from the Final Rule, DOI included a summary of the DOI Handbook to help the public understand the relationship between the Final Rule and DOI’s NEPA procedures.

As discussed above, the Final Rule rescinds the majority of DOI’s NEPA regulations. However, DOI has moved a significant portion of the regulations into the DOI Handbook, which is a non-regulatory guidance book. The DOI Handbook can help regulated entities understand what constitutes a “major Federal action” requiring DOI to comply with NEPA, and what level of environmental review would be required for the action. The DOI Handbook cross-references the requirements established in the Final Rule, including information regarding categorical exclusions and designating lead and cooperating agencies.

How do NEPA and the ESA intersect in practice?

The Endangered Species Act (ESA) establishes protections for species listed as threatened or endangered. 16 U.S.C. § 1531 et seq. The ESA applies to private actors, state agencies, and Federal agencies. NEPA analysis often accompanies two areas of ESA procedures: Section 7 consultations between DOI and Federal agencies, 16 U.S.C. § 1536, and the issuance of incidental take permits (ITPs) for non-federal projects, 16 U.S.C. § 1539.

When a Federal agency plans an action, including a permit issuance, that may “jeopardize” an ESA listed species, the Federal agency must consult with DOI in a process known as an ESA Section 7 consultation. In the Section 7 consultation, DOI will draft a Biological Assessment to determine the type of harm that the action may cause to the listed species and how many individuals of the species the Federal agency will be permitted to “take” (harm, harass, or kill) under the ESA. The Section 7 consultation process does not require NEPA analysis, but the analysis is often conducted concurrently. If a Section 7 consultation is required for a project, it is likely that the project will be considered a “major Federal action” that must undergo NEPA analysis.

For non-Federal projects (such as by private entities or state and local governments), or for projects that do not require other Federal permits, the project must receive an incidental take permit (ITP) from DOI if the species falls under DOI’s jurisdiction. The issuance of an ITP is considered a “major Federal action,” therefore the ITP application materials must undergo NEPA analysis. An ITP allows project proponents to “take” a certain number of federally listed species as part of the project. As part of the application for an ITP, the project proponent must submit a Habitat Conservation Plan (HCP). The HCP is a planning document that must describe the anticipated effects of the project on the listed species, how the impacts will be minimized or mitigated, and how the HCP will be funded. Therefore, an HCP must undergo NEPA review.

How will the rescission of DOI’s NEPA regulations impact permitting procedures within DOI?

While E.O 14154 focused on the development of American energy, the regulatory changes following the Executive Order will impact a variety of sectors. DOI includes the National Park Service, Bureau of Land Management, U.S. Fish and Wildlife Service (USFWS), and Bureau of Indian Affairs. All of these agencies must comply with the new regulations and can use the DOI Handbook for additional guidance.

DOI expects the changes to significantly reduce delays and costs for projects across public lands. Moving the majority of the procedural requirements to the non-regulatory DOI Handbook provides guidance to parties while maintaining flexibility for the agency to address project needs. Although the majority of the rescinded NEPA regulations are now guidance rather than regulatory requirements, DOI will likely continue to utilize and implement the previous regulatory standards.

How will the rescission of CEQ and DOI’s NEPA regulations impact permitting procedures related to the ESA?

The rescission of CEQ and DOI’s NEPA regulations will likely impact how agencies determine the “action area” for a project in ESA Section 7 consultations. Under the ESA, the “action area” for a project is determined based on consideration of all direct and indirect effects of the proposed agency action. In USFWS’s Endangered Species Consultation Handbook, USFWS provides an example of a project to construct a bridge in order to access a proposed development area. The bridge causes impacts to a wetland, which requires a federal permit from the Army Corps of Engineers, while the proposed development is located within the range of an ESA listed species. For the purposes of an ESA Section 7 consultation, USFWS will consider both the bridge and the housing development to be the “action area” for the bridge project.

In contrast, following the Supreme Court’s decision in Seven County Infrastructure Coalition v. Eagle County, 605 U.S. 168, 190 (2025), NEPA analysis of a project is narrowly tailored to projects that are “interrelated and close in time and place to the project at hand.” Depending on the circumstances of the bridge project, the Federal agency proposing the bridge project may determine that the project area for NEPA only consists of the wetlands around the bridge and does not include the development in the ESA listed species’ range.

The potential differences in defining the “action area” for a project is only one potential impact of the recission of CEQ and DOI’s NEPA regulations. Each Federal agency will have the opportunity to establish its own regulations and guidelines, which could create inconsistencies across agencies and regions. To ensure full compliance, project proponents should seek guidance from experts in this regulatory landscape.