On April 9, 2026, the Council on Environmental Quality (CEQ) issued updated guidance for federal agencies on establishing and applying categorical exclusions (CEs), the most commonly used form of review under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. The updated guidance replaces CEQ’s 2010 CE guidance and responds to the U.S. Supreme Court’s decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, 605 U.S. 168 (2025) and CEQ’s repeal of its NEPA implementation procedures early in the Trump administration.
Categorical exclusions have long been an established feature of NEPA practice, but they were first explicitly defined in the statute in the 2023 amendments to NEPA included in the Fiscal Responsibility Act. See 42 U.S.C. § 4336e(1). A CE represents an agency’s identification of “a category of actions that a [f]ederal agency has determined normally does not significantly affect the quality of the human environment within the meaning of [NEPA].” As a result, CEs do not require the preparation of an environmental assessment or environmental impact statement.
CEQ’s 2026 guidance encourages federal agencies to expand their adoption of CEs, both by considering new categories of actions that normally do not significantly affect the environment and by adopting other agencies’ established CEs (as authorized in the 2023 amendments to NEPA, 42 U.S.C. 4336c). The new guidance includes recommendations for adopting CEs from other agencies, including language discouraging agencies from soliciting public comment or consulting with CEQ when they adopt another agency’s CE. The guidance also suggests that an agency may continue to use an adopted CE even if the originating agency later rescinds or modifies that CE, “as long as the rationale supporting the categorical exclusion remains valid.”
The 2026 guidance retains several elements of previous agency practice in adopting CEs. However, it also introduces changes to the adoption process — as compared with CEQ’s 2010 CEQ guidance and its now-repealed NEPA implementation rules — that may present risks to projects relying on CEs adopted under the current framework. For example, both CEQ’s prior rules and its 2010 guidance required agencies to seek public comment on a proposed CE before establishing a new CE in their NEPA procedures. In contrast, the 2026 guidance does not require public comment on proposed CEs and instead requires only that agencies publish CEs in the Federal Register upon adoption.
The 2026 guidance acknowledges that agencies may still solicit public comment where necessary to comply with laws other than NEPA. For instance, the Administrative Procedure Act or other laws may still require public comment on new CEs, and an agency’s failure to solicit public comment may create litigation risk for both agencies and applicants relying on CEs promulgated without such input.
Other changes in the 2026 CE guidance include:
- The potential for joint CEs established by multiple agencies (for instance, where one agency funds an action and another issues a permit);
- Language permitting agencies to apply multiple CEs to a single agency action, which CEQ previously discouraged due to concerns about segmentation; and
- The concept of modifying an action to avoid extraordinary circumstances that might otherwise make application of a CE inappropriate due to the possibility of a significant environmental impact. This approach is analogous to longstanding agency practice of relying on a “mitigated finding of no significant impact,” which allowed an agency to avoid preparing an Environmental Impact Statement because required mitigation measures reduce the impacts of an action below the level of significance.