NASA Asks For NEPA Comments But Says It Does Not Need To

Keith’s note: NASA has published Procedures for Implementing the National Environmental Policy Act: Interim final rule; request for comments. Except they say they do not have to ask for comments “Because of this need for speed and certainty, notice and comment are, to the extent required at all, impracticable and contrary to the public interest.“ That said, NASA is being transparent when, it would seem, they do not need to be. FYI this note on a NEPA update from 2024 is what they have posted on their NEPA page. There is nothing about the current Administration’s executive orders, policies, etc. Pertinent excerpts from the new NEPA posting are below – with my bolded highlights.

Although NASA is voluntarily providing notice and an opportunity to comment on the interim final rule, the agency has determined that notice and comment procedures are not required because this interim final rule falls within the APA exception for “rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). In addition, NASA’s regulations implementing NEPA’s procedural requirements may be characterized as rules of agency organization, procedure, or practice. NASA’s regulations prescribe how NASA action proponents and non-Federal project sponsors should conduct NEPA reviews: detailing the administrative process applicable to preparation of environmental documents. The NASA regulations do not prescribe substantive environmental policies or command particular outcomes. Promulgation of rules of agency organization, procedure, or practice does not require notice and comment. See 5 U.S.C. 553(b)(A).

Because of this need for speed and certainty, notice and comment are, to the extent required at all, impracticable and contrary to the public interest. To the extent that public comment may suggest further revisions are warranted, NASA’s solicitation of public comment for 30 days following the publication of the rule is intended to accommodate that possibility. But, to the extent that this interim final rule would otherwise require a proposal and solicitation of public comment, NASA’s view is that the “good cause” exception (5 U.S.C. 553(b)(B)) pertains here.

Though NASA seeks comments to obtain the public’s views, such comments could not alter the legal realities–most notably the repeal of the CEQ’s NEPA implementing regulations and the rescission of the E.O. that purported to authorize them, the recission of the CEQ regulations and the statutory amendment from the OBBBA–that create the swift need for such a change. NASA will consider comments submitted in response to this action and address them when issuing a final rule, with changes, if warranted, after consideration of the comments received. For these reasons and those above, NASA finds that “good cause” exists under 5 U.S.C. 553(d)(3) to forgo the 30-day delay of the effective date. Accordingly, this rulemaking will be effective immediately.

On January 20, 2025, President Donald J. Trump issued Executive Order (E.O.) 14154, Unleashing American Energy.\1\ E.O. 14154 rescinded E.O. 11991, Relating to Protection and Enhancement of Environmental Quality,\2\ which rescinded E.O. 11514, Protection and Enhancement of Environmental Quality.\3\ E.O. 11514 had directed the CEQ to promulgate regulations for implementing NEPA and required Federal agencies to comply with those regulations. On February 25, 2025, CEQ issued an interim final rule with an effective date of April 11, 2025,\4\ removing its existing NEPA implementing regulations at 40 CFR parts 1500 through 1508 (CEQ regulations), which CEQ adopted as final on January 8, 2026.\5\ E.O. 14154 also directed CEQ to issue guidance to Federal departments and agencies on revising their own internal NEPA implementing procedures (or establish such procedures if not already established) to expedite permitting approvals and for consistency with Title I of NEPA.

In 2023, Congress added substantial detail and direction in Title I of NEPA, including on procedural issues that CEQ addressed in its regulations and that individual action agencies had previously addressed in their own NEPA implementing procedures. NASA recognized the need to update its regulations considering these significant legislative changes. Since NASA’s regulations were originally written in accordance with CEQ’s NEPA implementing regulations, NASA had been awaiting CEQ action before substantially revising its regulations,\6\ 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, it is exigent that NASA quickly conforms its procedures to the statute as amended.