DOT issues updates to NEPA implementing procedures

DOT Order 5610.1D

DOT issued a notice of availability and request for comment on new requirements for considering environmental impacts under NEPA, including provisions for applicant-prepared environmental review documents.  See 90 Fed. Reg. 29,621 (published July 3, 2025).  The Order is effective immediately as an “interim” final order that may be revised based on public comments received.

Importantly, the Order only applies to projects going forward from July 3, 2025.  In the Notice of availability, DOT stated that updating the Order is consistent with Executive Order 14154 “Unleashing American Energy”, and in line with the recent amendments to NEPA in the Fiscal Responsibility Act of 2023, which added “substantial detail and discretion” on procedural issues that CEQ and other agencies addressed in their individual NEPA procedures.  DOT also asserted the updates are consistent with the recent Supreme Court decision in Seven County Infrastructure Coalition v. Eagle County, in order to streamline environmental review procedures.

DOT Order 5610.1D contains general procedures for all DOT OAs, and includes a number of requirements applicable to specific OAs, including the Maritime Administration (MARAD), Federal Motor Carrier Safety Administration (FMCSA), National Highway Traffic Safety Administration (NHTSA), and Pipeline and Hazardous Materials Safety Administration (PHMSA).  See DOT Order Sections 29-31.

General department-wide procedures

The DOT Order contains the following updates that generally apply to all DOT OAs, including but not limited to:

• Applicant-prepared environmental documents.  The order sets forth procedures for applicant-prepared environmental documents.  Notably, an applicant (or contractor hired by an applicant) may prepare documentation for a categorical exclusion, environmental assessment (EA), or environmental impact statement (EIS) and Section 25 sets procedures for applicant-prepared environmental review documents.  See Sections 7.d; 25. 

• Reevaluation procedures. The Order contains reevaluation procedures, in which an OA must reevaluate in writing a Draft EIS or EA if the OA has not issued a Final EIS or Final EA within five years; or reevaluate a Final EIS or EA if “major steps toward implementation have not commenced within five years” from the date of the final EIS, supplement, or EA.

• Page limitations.  In order to streamline environmental review, the order provides page limitations for EAs and EISs, as well as deadlines to complete environmental reviews – ranging from one year from the start of an EA to a finding of no significant impact (FONSI) to two years from the start of a draft to final EIS.

• General terminology and responsibility.  Changes in the Order include updating the names of the relevant offices that have responsibilities, including the Office of Environment and Office of the General Counsel (and relevant subdivisions thereof).  In addition, the DOT Order updates terminology for consistency with modern NEPA practice and the Department’s current operations, including updating the definition of “major federal action” and distinguishing between “related actions” and “connected actions.”

MARAD

As noted above, specific procedures for MARAD are outlined in the new DOT Order at Section 30.  Notably, examples of updated procedures include:

• Indicating that an EIS will be prepared for any proposed major federal action significantly affecting the environment, and identifying Deepwater Port license applications and large port infrastructure projects as the “types” of proposed actions that “normally require the preparation of an EIS.” 

• Specifying procedures for applicant-prepared environmental documents, including allowing the delegation and preparation of environmental review documents by grantees, deepwater port applicants, contractors, or agents acting on behalf of MARAD.  The procedures make clear that MARAD is ultimately responsible for and must independently evaluate the accuracy, scope and content of the documents.
• Defining the roles of various personnel involved in NEPA review, including identifying the Associate Administrator of the Office of Environment and Compliance (OEC) as the principal liaison with respect to significant NEPA matters and OEC Director as responsible for advising and assisting the project applicant in preparation and coordination of environmental documentation.
• Allowing project applicants to purchase construction materials or equipment with long lead times (i.e., items that require more than six months from time of order to time of delivery) prior to completion of NEPA (subject to prior notification and written approval from MARAD), so long as such purchase do not limit the choice of reasonable alternatives.
• Outlining procedures for pre-NEPA field investigations, including a MARAD approval process for field surveys, studies, investigations that may require disturbances to the natural and manmade environment.
• Defining categorical exclusions and extraordinary circumstances, including seven categories of action for which preparation of an EA or EIS is not necessary.
• Defining MARAD’s obligations surrounding reliance on existing environmental documents, including reevaluation in the event that after a FONSI or ROD is signed, environmental commitments, settings, circumstances, or project design or scope may change.  MARAD will determine in writing whether the existing environmental document is adequate, accurate and valid or whether a new or supplemental NEPA analysis is needed.  In particular, reevaluation should occur if more than five years have passed since the date of the issuance of original environmental document and the proposed action has not begun, additional federal approvals are required, or OEC determines reevaluation is required.  MARAD is responsible for coordinating the reevaluation with other agencies, if appropriate.

NHTSA

NHTSA, in a separate action, rescinded its 1975 Procedures for Considering Environmental Impacts and is now subject to the procedures outlined in DOT Order 5610.1D.  See NHTSA, Interim Final Rule, Recession of NHTSA’s 75 Procedures for Considering Environmental Impacts, 90 Fed. Reg. 29,507 (July 3, 2025).

Examples of updated NHTSA procedures include:

• Defining the roles of various personnel involved in NEPA review, including identifying the NHTSA Administrator as the designated senior agency official responsible for the overall review of NEPA compliance and resolving implementation issues.

• Identifying levels of NEPA review, including:
• Outlining Procedures specific to agency decision-making for programmatic environmental review, rulemaking proceedings, and use of contractors in preparing environmental review documents.
• Defining the process to use DOT’s categorical exclusions, or those adopted by another agency for which preparation of an EA or EIS is not necessary.
• Outlining procedures for relying on existing environmental documents and when a reevaluation or supplemental review is necessary – including where a major Federal action remains to occur and NHTSA makes a substantial change to the proposed action, or if there are significant new circumstances or information relevant to environmental concerns. 

Importantly, NHTSA issued the recission as an interim final rule, which is a rulemaking approach under the Administrative Procedure Act (APA) that does not require the agency to undergo the traditional notice and comment rulemaking process and becomes immediately effective upon publication in the Federal Register. Typically, agencies will issue a notice of proposed rulemaking, followed by a period of public comment, before issuing the final rule and responding to meaningful comments.  In the Interim Final Rule, NHTSA stated “[t]he APA authorizes agencies to issue regulations without notice and public comment when an agency finds, for good cause, that notice and comment is ‘impracticable, unnecessary, or contrary to the public interest’”.  Id. at 29,508; see also 5 U.S.C. § 553(b)(B).  While still offering an opportunity for public comment, NHTSA maintained notice and comment is “unnecessary” because the action “merely rescinds procedures that are already obsolete and are inconsistent with current law, and have been replaced by department-wide procedures.”  Id.  Moreover, NHTSA stated that NEPA is a “purely procedural statute” and therefore falls within the APA exception from notice and public comment for “rules of agency organization, procedure, or practice.”  5 U.S.C. § 553(b)(A).

Additional DOT NEPA updates

In addition to the department-wide Order, several other DOT agencies have updated their NEPA implementing procedures including the joint Federal Highway Administration (FHWA), Federal Railroad Administration (FRA), and Federal Transit Administration (FTA) procedures, and the Federal Aviation Administration (FAA) Order 1050.1G.  See FHWA, FRA, FTA Interim Final Rule, Revision of National Environmental Policy Act Regulations, 90 Fed. Reg. 29,426 (July 3, 2025); FAA, Notice of Recission of FAA Order 1050.1F, Availability of FAA Order 1050.1G, Request for Comments; FAA Order 1050.1G, FAA National Environmental Policy Act Implementing Procedures (pre-publication copy). Notably, both the joint procedures and FAA Order 1050.1G also permit an applicant, or project sponsor, to prepare environmental documents.

While each of the actions listed above are issued as interim final rules or interim orders, DOT is soliciting public comment.  For each action, comments are due by August 4, 2025.

The updates to DOT’s NEPA procedures are part of a broader trend of executive agencies updating NEPA implementing procedures, in line with the Trump Administration’s priorities to streamline environmental review.  It will be important to watch how the OAs implement these procedures in practice, and how the changes from prior procedures may benefit potential project applications moving forward.

Authored by Joanne Rotondi, Jim Banks, Hannah Graae, and Allisa Newman.