When Agencies Overlook the Environment, NEPA Speaks Up
By Gustavo Concepcion-Cordero
More than 55 years after its enactment, the National Environmental Policy Act (NEPA) is still a valuable tool for environmental advocates.[1] NEPA requires federal agencies to consider if there are reasonably foreseeable environmental impacts of proposed major federal actions.[2] An agency will have to issue an Environmental Impact Statement (EIS) if it finds that its proposed action has a reasonably foreseeable significant effect on the quality of the human environment.[3] Environmental advocates regularly bring suits when they believe an agency failed to prepare an EIS or a conduct a proper EIS.[4] One common outcome when a court finds that the agency did not comply with NEPA is to issue an injunction and order the agency to prepare a proper EIS.[5] While courts have described NEPA as a purely procedural statute, federal agencies must comply with its environmentally conscious provisions.[6]
In recent years, however, Congress has made certain NEPA challenges more difficult to pursue. In 2015 Congress approved the Fixing America’s Surface Transportation Act (FAST Act).[7] The Act contains certain provisions affecting some NEPA claims.[8] Under the FAST Act, parties seeking to bring a NEPA claim must submit a comment during the agency’s environmental review period and these claims are subject to a two-year statute of limitations.[9]
NEPA also created the Council on Environmental Quality (CEQ) with the purpose of, among other duties, assisting and advising the President on certain environmental matters, including NEPA implementation.[10] For almost 50 years, the CEQ promulgated government-wide regulations for other agencies to follow when implementing NEPA, but the current administration has taken actions to reduce the CEQ’s power.[11] As a part of his first day executive orders, the President reduced the regulatory power of the CEQ to implement NEPA regulations.[12] By April the CEQ was forced to rescind all of its NEPA regulations.[13]
The President may seek to expedite and simplify the permitting process, but this cannot come at the expense of our environment.[14] NEPA is part of the rule of law and agencies are still subject to judicial review when they fail to properly consider the reasonably foreseeable environmental impacts of their actions. Environmental advocates are not giving up, nor should they.
Recently, a group of advocates in Puerto Rico obtained a partial summary judgment in their favor against the Federal Emergency Management Agency (FEMA).[15] FEMA is currently working on projects to rebuild Puerto Rico’s power grid, following the devastating impacts of Hurricane Maria in 2017.[16] These projects will have a substantial impact on the citizens of Puerto Rico, as it has been reported that FEMA will spend billions of dollars on the repairs.[17] The suit, filed by the Center for Biological Diversity and eight Puerto Rican community groups, highlights how FEMA failed both to consider renewable energy sources in its plans and to prepare an EIS.[18]
The court found there would be significant impacts to human life in Puerto Rico and an EIS should have been prepared.[19] The court proceeded to explain how the agency’s decision will affect the vast majority of Puerto Rico. First, continued reliance on the existing energy infrastructure will affect public health and safety considering the frequent power outages caused by the aging infrastructure.[20] Second, the projects will likely affect park lands, ecologically critical areas, and protected species considering how transmission lines run through some of these areas.[21] Finally, it could establish a harmful precedent for future actions: if FEMA funding continues to be used for fossil fuel-based infrastructure, it is unlikely that Puerto Rico will have the resources to pursue renewable energy alternatives in the near future.[22]
What FEMA’s ultimate EIS may look like is yet to be seen, but they are required to go back and consider renewable energy alternatives for Puerto Rico and the environmental impacts of their proposals. Hopefully, FEMA will propose and pursue a project that is good for the environment and the people of Puerto Rico. However, as the Supreme Court has stated: “NEPA merely prohibits uninformed—rather than unwise—agency action.”[23] While this statement can be disheartening, it’s still a powerful one. Uninformed agency action is still prohibited, and courts are willing to hold agencies accountable.
The role of NEPA may seem small, but it can play a crucial role in federal decision making. The federal government engages a significant number of major federal actions; the least it can do is consider reasonably foreseeable environmental impacts of its actions. Especially when noncompliance may significantly affect the quality of human life. After all, complying with procedural statutes is an essential part of government integrity.
[1] See Kristen Hite & Heather McPherron, National Environmental Policy Act: An Overview, Cong. Rsch. Serv. (June 26, 2025) https://www.congress.gov/crs-product/IF12560.
[2] 42 U.S.C. § 4332(C) (2023).
[3] Id. § 4336(b)(1).
[4] Kristen Hite, Cong. Rsch. Serv., IF11932, National Environmental Policy Act: Judicial Review and Remedies, (2025).
[5] See id.
[6] Seven Cnty. Infrastructure Coal. v. Eagle Cnty., 605 US 168, 172 (2025).
[7] 23 U.S.C. § 101 et seq. (2021).
[8] 42 U.S.C. § 4370m-6(a) (2021).
[9] Id.
[10] Hite & McPherron, supra note 1.
[11] Id.
[12] Unleashing American Energy, Exec. Order No. 14154, 90 Fed. Reg. 8353, 8355 (2025).
[13] Hite & McPherron, supra note 1.
[14] Unleashing American Energy, supra note 12.
[15] Comite Dialogo Ambiental, Inc. v. FEMA, No. 3:24-CV-01145-JAG, at 1 (D.P.R. 2025) (https://biologicaldiversity.org/programs/energy-justice/pdfs/Opinion-Requiring-an-EIS-on-Renewable-Energy-Alternatives-in-Puerto-Rico.pdf).
[16] Id. at 12.
[17] Id. at 4.
[18] Id. at 6.
[19] Id. at 11.
[20] Id.
[21] Id.
[22] Id.
[23] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).