A Senate Environment and Public Works (EPW) Committee hearing this week demonstrated continued interest in durable permitting reform on the same day that the Council on Environmental Quality (CEQ) terminated the long-standing government-wide rules for National Environmental Policy Act (NEPA) reviews in response to recent court cases and an Executive Order. The whiplash of permitting policy change of the last eight years undoubtedly increases the bipartisan interest in durable legislation; however, the hearing did not examine specific legislation or offer great detail on where exactly bipartisan agreement on solutions will be found. Various ideas discussed included shortening timelines for litigation, excluding more categories of project or geographic locations from review, and protecting the use of nationwide permits.  

The EPW hearing on February 19 on Improving the Federal Environmental Review and Permitting Processes was the EPW Committee’s second hearing of this Congress outside of nomination hearings and business meetings. Chairman Shelly Moore Capito (R-WV) and new Ranking Minority Member Sheldon Whitehouse (D- RI) shared a common goal of demonstrating strong bipartisan interest in working on broad permitting reform in coordination with the Energy and Natural Resources Committee and sister committees in the House.  

On the same day as the hearing, the CEQ released the pre-publication version of an Interim Final Rule removing their NEPA Implementing Regulations, in response to recent Executive Orders and court decisions. The context of these judicial and administrative actions on NEPA also hung as a cloud of uncertainty over the hearing; hearing witnesses and even Republican members referred obliquely to the risk that these actions could in fact exacerbate inconsistent implementation of NEPA, and repeatedly encouraged adoption of “durable” legislation over whiplashing policy changes.  

More explicit was the warning from Sen. Whitehouse in his opening statement that “Democrats cannot agree to any permitting reform unless and until the Trump Administration ends it lawless disregard for Congressional authority and judicial orders.” That context will remain an obstacle to enactment of any legislation, but nonetheless it’s clear that the Senate remains eager to demonstrate interest in passing permitting legislation, and the types of infrastructure at play continues to grow. 

EPW Permitting Hearing 

EPW’s hearing featured witnesses representing the energy and homebuilding industries, labor, and non-profits focused on advancing deployment of energy infrastructure. The selection of witnesses and the nature of the questions asked up and down both the Republican and Democratic side of the dais bolstered the EPW leadership’s claim of bipartisan eagerness to “catch the elusive white whale—permitting reform”, as Sen. Whitehouse described it. The witnesses uniformly agreed to the premise posed by Sen. Capito that there is a need for bipartisan legislation to address permitting challenges, and no witness or member sought to defend the status quo. Members and witnesses shared a range of complaints on the permitting requirements for a wide swath of infrastructure, including not only transportation and renewable and traditional energy but also broadband, waterlines, housing, wildfire mitigation, manufacturing, and other sectors. But whether intentionally or not, while the hearing uplifted agreement on the need for Congressional action, it stayed relatively quiet on details of any new legislative proposals.  

Witness List 

• Leah Pilconis, General Counsel, The Associated General Contractors of America 

• Carl Harris, Chairman of the Board, National Association of Home Builders 

• Jeremy Harrell, CEO, ClearPath 

• Nicole Pavia, Director – Clean Energy Infrastructure Deployment, Clean Air Task Force 

• Brent Booker, General President, Laborers’ International Union of North America 

The witnesses for both the majority and minority largely focused on the negative impacts of delays on a variety of outcomes including investment costs, jobs, consumer prices, energy security, and the economy, while also calling for permitting processes to continue protecting environmental resources. Multiple witnesses called for urgency in permitting changes due to the scale at which demand growth is outpacing the deployment of new infrastructure in many economic sectors.  

Proposals for permitting reform suggested by witnesses centered most on constraining litigation through reducing the statute of limitations for judicial review of permit decisions. Typically, litigants have six years to bring a suit under the Administrative Procedures Act but that timeline has been shortened to two years for FAST-41 covered projects and 150 days for surface transportation projects. Ms. Pilconis urged Congress to standardize the statute of limitations at 150 days for all critical infrastructure projects, as a top priority. 

While Mr. Harrell of ClearPath urged the members of the committee to seek major reforms rather than minor tweaks, many of the proposed solutions that he and other witnesses discussed were expansions and codifications of existing authorities rather than wholesale changes to review procedures.  For instance, several witnesses called for increasing the use of the FAST-41 process, expanding categorical exclusions, and for protecting the use of nationwide permits under the Clean Water Act, all existing frameworks for efficient processing of environmental reviews. Other proposed solutions included the use of a “permit by rule” approach, and encouraging infrastructure development in qualified geographic locations or previously disturbed environments.  

The transportation sector featured much less prominently than housing and energy in the hearing, although Sen. Adam Schiff (D, CA) prompted a discussion with Mr. Harris on the potential to use federal transportation dollars as incentives for state and local policies to increase housing supply. 

A persistent refrain in the hearing was the need for congressional action to ensure consistent implementation of NEPA and to prevent regulatory fragmentation. At multiple points the word “durable” was used as a goal for a policy approach that would work “for next 40 years not the next 4 years”. While rarely explicitly named as such, this is likely a response to the Trump Administration’s revocation of CEQ’s NEPA implementing regulations and concerns that far from expediting environmental reviews, this move could impede efficiency by reducing consistency between agencies’ implementation of NEPA. 

Recent Administrative and Court Decision Context for NEPA Reform 

In Section 5 of President Trump’s Day One Executive Order 14154 on Unleashing American Energy, the President directed CEQ to propose rescinding their NEPA regulations within 30 days. In addition to this policy direction, two recent court cases —Marin Audubon Society v. FAA in December 2024, and Iowa v. Council on Environmental Quality on February 3, 2025— have found that CEQ lacks the authority to issue NEPA regulations.  

CEQ was first directed to issue NEPA regulations in 1977 in response to a Carter era Executive Order (which was also repealed as part of E.O. 14154). After going largely unchanged for more than 40 years, in the past 8 years the NEPA regulations were rewritten in 2020 by President Trump, with the rewrite partially repealed by a “Phase 1” rule under President Biden, followed by statutory amendments to the law as part of the Fiscal Responsibility Act (FRA), and finally further changes and implementation of the FRA amendments released in the “Phase 2” rule in May of 2024.  

Following publication of CEQ’s “Phase 2” rule, a challenge was immediately brought by 20 states, however prior to the ruling on that case, in December 2024 in the unrelated case of Marin Audubon Society v FAA, the D.C. Circuit Court ruled that the CEQ lacked the authority to issue regulations at all, a question that had not been raised or argued in the case. Recognizing the importance of settling this issue, the North Dakota District Court ordered the parties in Iowa v. CEQ to submit additional briefings on this question of CEQ’s authority. On February 3, the ND District court issued the ruling in Iowa v. CEQ concurring with the D.C. Circuit Court finding that CEQ lacks rulemaking authority and additionally finding the 2024 “Phase 2” rule to have been arbitrary and capricious. This decision vacated that rule, restoring the 2020 NEPA regulations.  

Despite the Trump era NEPA regulations having been judicially restored, with E.O. 14154’s 30-day deadline ending on Wednesday, CEQ released their prepublication Interim Final Rule in which CEQ “conclude[s] that it may lack authority to issue binding rules on agencies” and removes their NEPA implementing regulations from the Code of Federal Regulations. Importantly, neither the court finding nor CEQ’s action remove the requirement for agencies to implement NEPA, nor do they strip the ability of agencies to use their existing NEPA implementing procedures. Today, those agency procedures largely conform to CEQ’s regulations, but because of these rulings and regulatory actions, agencies will now have the freedom to amend their individual NEPA implementing procedures without reliance on or adherence to CEQ’s rules.