News | July 7, 2025

Significant Changes to the National Environmental Policy Act Affecting Airport Projects

The National Environmental Policy Act (NEPA) has seen seismic changes in the past several months.

On June 30, 2025, FAA rescinded its previous NEPA procedures and issued new Order 1050.1G, Environmental Impacts: Policies and Procedures, to address the recent rescission of the Council on Environmental Quality (CEQ) NEPA regulations, recent Executive Orders, and a recent Supreme Court decision, and to align with the relatively recent statutory updates adopted as part of the Fiscal Responsibility Act of 2023. At the same time, FAA rescinded the airport-specific NEPA order, Order 5050.4B to the extent that it conflicts with new Order 1050.1G. The Department of Transportation has also issued updated NEPA procedures.

The new NEPA procedures were issued in part in response to a November 2024 decision from the U.S. Court of Appeals for the D.C. Circuit in Marin Audubon Society v. Federal Aviation Administration, which invalidated the CEQ NEPA regulations on the grounds that they had been issued in excess of legal authority. Then, on January 20, 2025, President Trump issued Executive Order 14154, Unleashing American Energy, which rescinded the 1970’s Executive Order that CEQ had relied on for decades as the basis for its authority to promulgate NEPA regulations. In response, CEQ issued an interim final rule on February 25, 2025, formally rescinding  its regulations. Two months later, the U.S. Supreme Court issued a landmark decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, in which the Court announced a “course correction” for the statute, directing courts to give substantial deference to agency fact-finding underlying their NEPA decisions and limiting the scope of agencies’ reviews of indirect effects.

Key revisions in the new FAA Order 1050.1G include:

  • Updated terminology and definitions;
  • Expanded list of actions that do not constitute “Major Federal Actions” and are therefore not subject to NEPA review;
  • Significant new clarifications on the use of categorical exclusions (CATEXs), including edits to the list of extraordinary circumstances that elevate a CATEX to a higher level of review in order to comport with the recent Supreme Court case;
  • Adoption of the statutory page and time limits for environmental assessments (EAs) (75 pages and 1 year) and environmental impact statements (EISs) (150 pages and 2 years);
  • Clarification of streamlining procedures;
  • Removal of environmental justice, climate change, and cumulative impacts as required areas of analysis; and,
  • Modification to the existing FAA significance thresholds to comport with the Supreme Court’s narrowing of the obligation to examine indirect effects.

While it is too early to predict with certainty the effect of all of these changes, it is clear that the Order is designed to curtail the scope of NEPA reviews in response to the Supreme Court’s admonition against “litigation-averse agencies” that have been taking “ever more time … to prepare ever longer EISs.” The new Order affords expanded opportunities for the use of CATEXs, provides stricter guidance on time and page limits, and limits the scope of impacts that FAA is obligated to review to complete a compliant environmental review.

The new Order is effective immediately but FAA announced that it will accept public comments on the rule until August 4, 2025, and that comments received will “inform future revisions.”

In addition to these administrative developments, last week, the President signed into law the legislation that he is calling “One Big Beautiful Bill Act.” Section 60026 of the Act amends the NEPA statute to provide project sponsor opt-in fees for environmental reviews. The new language would allow a project sponsor to pay a fee for preparation of an EA or EIS to secure even more expedited reviews (180 days for an EA and 1 year for an EIS). The fee is set at 125 percent of the anticipated cost for the sponsor to prepare the EA or EIS or for the agency to supervise the preparation of the EA or EIS. FAA has not yet stated how it will implement this new law.

If there is one takeaway from all of these changes it is that NEPA law and practice is changing quickly and business as usual is no longer appropriate. Practitioners will need to be nimble to ensure that their environmental processes and documentation accord with the new policies. For additional questions, please contact Katie van Heuven or any other Kaplan Kirsch attorney with whom you normally work.