Regulatory Alert: DOT and FAA Provide Opportunity for Comments on Updated NEPA Implementation Guidance
July 3, 2025
Today, the U.S. Department of Transportation (DOT) and Federal Aviation Administration (FAA) published notices and provided an opportunity for public comments on their updated guidance documents that implement the National Environmental Policy Act (NEPA), which the department and agency released earlier this week. The new NEPA guidance documents, DOT Order 5610.1D and FAA Order 1050.1G, include significant revisions and apply to any new federal actions moving forward. AAAE has included a copy of our July 1 Regulatory Alert below that provides our analysis based on an initial review of the documents.According to the notices published today, DOT and FAA will accept comments from the public and industry on their respective orders until Monday, August 4. You can view the DOT notice here and the FAA notice here. AAAE will soon solicit feedback from members to help develop our comments and respond to the notices. In the meantime, if you have any questions or input you would like to share with AAAE, please reach out to Justin Barkowski.
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Yesterday afternoon, the U.S. Department of Transportation (DOT) released significant updates to the guidance documents that implement the National Environmental Policy Act (NEPA) for the department and the Federal Aviation Administration (FAA), including a long-awaited update to FAA Order 1050.1. A complete analysis of the new guidance documents from DOT and FAA is provided below based on our initial review. However, several of our high-level takeaways include the following:
- The new NEPA guidance documents, DOT Order 5610.1D and FAA Order 1050.1G, take effect immediately and apply to any new actions initiated on or after June 30, 2025;
- The DOT and FAA guidance documents put an emphasis on enforceable NEPA review deadlines, including clarifying the “start date” for the one- and two- year statutory deadlines that apply to the completion of environmental assessments (EAs) and environmental impact statements (EISs), respectively;
- The DOT and FAA guidance documents seek to clarify and narrow the scope of environmental effects that must be considered during a NEPA review;
- FAA included several new categorical exclusions (CATEXs) for FAA actions associated with airport-specific projects in its guidance, but key questions remain over how they will be applied;
- The DOT and FAA guidance documents suggest that airport sponsors, or a sponsor-hired contractor, may prepare any environmental documents;
- FAA’s NEPA guidance does not make any meaningful changes to the agency’s policy and procedures for evaluating noise impacts during NEPA reviews;
- FAA’s NEPA guidance suggests that Order 5050.4B, which is specific to airport-specific actions, is superseded and no longer in effect, although it may be used as a “reference or guide” to the extent it does not conflict with Order 1050.1G; and
- Industry will have an opportunity to comment on the DOT and FAA guidance documents, although the timeline and process are uncertain.
You can read DOT’s press release (here), DOT Order 5610.1D (here), and FAA Order 1050.1G (here).
Background
Any actions undertaken by a federal agency, such as issuing a grant or approving an airport layout plan (ALP) update, are subject to the NEPA review process. Since 1978, the Council on Environmental Quality (CEQ) has established and enforced the regulations that govern how each federal agency, including the FAA, is required to conduct a NEPA review. However, in November 2024, the U.S. Court of Appeals for the D.C. Circuit issued a decision in Marin Audubon Society v. FAA, finding that CEQ’s regulations were invalid because the council did not have statutory authority to promulgate regulations that are binding on other agencies. The decision created significant confusion as to how agencies were expected to comply with NEPA.
On the first day of his administration, President Trump issued an executive order, revoking the authority of the CEQ to promulgate regulations dictating how agencies must comply with NEPA. In February, CEQ rescinded its NEPA regulations and directed each federal agency to update its NEPA implementation guidance no later than February 2026. In the case of FAA, the agency’s guidance included FAA Orders 1050.1F and 5050.4B, which had not been updated since 2015 and 2006, respectively. For DOT, it included DOT Order 5610.C, which had not been updated since 1985.
Key Takeaways from DOT and FAA NEPA Guidance
With the announcement yesterday, DOT and FAA have released Order 5610.D and 1050.1G, respectively, which are meaningful updates to their NEPA implementation guidance. Based on our initial review and analysis of the two documents, we have highlighted some key takeaways for airport sponsors:
The DOT and FAA guidance documents put an emphasis on enforceable NEPA review deadlines, including clarifying the “start date” for the one- and two- year statutory deadlines that apply to an EA and EIS, respectively. Under the Fiscal Responsibility Act of 2023, Congress established deadlines by which agencies must complete environmental documents. Agencies must complete an EA within one year and an EIS within two years. However, in our “Commonsense Recommendations for Regulatory Reform,” AAAE urged the administration to strictly enforce these deadlines and set an objective “start date” for when the statutory period begins. We have received reports from members that FAA staff often conducts extensive “pre-work” before triggering the one- or two-year review period.
In DOT’s press release, the department specifically mentioned that FAA will “enforce hard deadlines” associated with NEPA reviews. In FAA Order 1050.1G, the agency included several changes relating to deadlines that could pressure staff to complete reviews within the statutory timeframe, including:
- Providing some clarity on the criteria that staff must use to determine the effective “start date” and “end date” for an EA and EIS;
- Providing an extension to the one- and two-year deadlines “for cause,” which may only be established if the EA or EIS is “so incomplete” that issuance of the document would “result in inadequate analysis”; and
- Requiring the responsible FAA official for the EA or EIS to attest (and include a declaration in the EA or EIS) that the resulting document “represents FAA’s good faith effort to fulfill NEPA’s requirements within the Congressional timeline.”
The DOT and FAA guidance documents seek to clarify and narrow the scope of environmental effects that must be considered during a NEPA review. In its guidance, FAA repeatedly emphasized that the agency must only evaluate the “action or project at hand” when determining the appropriate level of NEPA review and whether the environmental effects of the action are significant. The scope of effects considered in a review have been subject to significant debate over the prior two administrations. In May, the U.S. Supreme Court issued a decision in Seven County Infrastructure Coalition v. Eagle County that narrowed the scope of effects that agencies must consider. FAA’s guidance comports with the decision, noting that environmental effects of an action do not include “those effects that the agency has no ability to prevent due to the limits of its regulatory authority.”
FAA included several new CATEXs for FAA actions associated with airport-specific projects in its guidance, but key questions remain over how they will be applied. Under appendix B of FAA Order 1050.1G, the agency updated its list of CATEXs. Based on our initial review, several new CATEXs cover FAA actions associated with airport-specific projects, absent extraordinary circumstances. These include:
- Land Use Changes: FAA decisions on land use change actions for sponsors with federally acquired or federally conveyed land are covered by a CATEX. The decisions include (a) an approval or consent to the non-aeronautical or mixed use of airport-dedicated property, or (b) a release of a sponsor from federal obligations incurred during acquisition of airport property. FAA also noted that decisions on land use change actions “must consider whether the proposed and reasonably foreseeable uses of the property trigger extraordinary circumstances . . . .”
- Vertiport Development: FAA grant funding for, or ALP approval of, a new vertiport on an existing airport is covered by a CATEX if it would not significantly increase noise over noise-sensitive areas. This CATEX is consistent with section 953 of the FAA Reauthorization Act of 2024, which directed the agency to develop appropriate CATEXs for vertiport development.
- Removal of Obstructions: Any federal action related to removing trees or other obstructions to air navigation (e.g., light poles, utility lines, signs, and billboards), on or off airport property, is covered by a CATEX under certain conditions.
- Projects with Limited Federal Assistance: An action to approve, permit, finance, or otherwise authorize an airport project is covered by a CATEX if the project (a) receives less than $6 million in federal funding; (b) receives less than $6 million in PFC revenue; or (c) has a total estimated cost of not more than $35 million and federal funding does not exceed 15% of the total estimated project cost. This new CATEX is consistent with section 788 of the FAA Reauthorization Act of 2024.
- Rebuilding Infrastructure After Natural Disasters: An action to approve, permit, finance, or otherwise authorize an airport project is presumed to be covered by a CATEX under certain conditions if the project is for the repair or reconstruction of any airport infrastructure that is damaged or destroyed in a natural disaster. This new CATEX presumption is consistent with section 788 of the FAA Reauthorization Act of 2024.
The DOT and FAA guidance documents suggest that airport sponsors, or a sponsor-hired contractor, may prepare any environmental documents. Under section 7(d) of the DOT guidance, the department states that an “applicant or contractor hired by the applicant may prepare documentation for a [CATEX], [EA] or [EIS], where applicable.” However, FAA’s guidance provides that the sponsor or its contractor may prepare environmental documents, including an EA or EIS, under the agency’s supervision. The discrepancy between the two orders makes it unclear if “environmental documents,” as referenced in the FAA guidance, would include CATEXs. AAAE had urged the administration to allow sponsors, if they choose, to prepare drafts of all environmental documents, including CATEXs. This is an issue that will need to be clarified, but the documents suggest sponsors should be permitted to prepare EAs and EISs, at the very least.
FAA’s NEPA guidance appears to eliminate the expiration dates for the validity of CATEX determinations, EAs, and EISs. Under prior FAA guidance, the agency considered a final EA or final EIS valid for only three years. In our “Commonsense Recommendations for Regulatory Reform,” we urged the administration to extend the validity of these documents, which would extend the value of previous studies and eliminate unnecessary re-evaluations. Under section 3.2(a) of FAA Order 1050.1G, the agency may rely on “any pre-existing EIS, EA, or determination that a CATEX applies to a given project, or portion thereof,” provided that the document meets the standards for an “adequate statement, assessment, or determination under these procedures.” The language suggests that environmental documents will not expire if the analysis remains valid and applicable.
FAA’s NEPA guidance does not make any meaningful changes to the agency’s policy and procedures for evaluating noise impacts during NEPA reviews. Based on our initial review, FAA retained its existing policies and procedures for evaluating noise impacts from proposed actions during the NEPA review process, including proposed airport development projects and FAA-initiated changes to airspace and air traffic procedures. This was expected. FAA has been conducting a multi-year review of its aircraft noise policies since 2023. Under the FAA Reauthorization Act of 2024, Congress directed FAA to establish an “Aircraft Noise Advisory Committee” (ANAC), which must provide recommendations to the agency on its existing noise policies and regulations. We continue to expect that FAA will not propose any updates to its noise policies, including the NEPA guidance, until after the ANAC has been established and submitted recommendations. The earliest FAA may propose any policy updates is 2027.
FAA’s NEPA guidance suggests that Order 5050.4B, which is specific to airport-specific actions, is superseded and no longer in effect. FAA Order 5050.4B has been in effect since 2006 and included the Office of Airports’ NEPA implementation guidance. However, in the introduction, FAA Order 1050.1G states that the document “supersedes Lines of Business (LOB)-specific orders, as well as any LOB-specific guidance, manuals, or other NEPA-related instructions to the extent that they conflict with this Order.” This suggests that Order 5050.4B is no longer in effect, although FAA states that it may be used as a “reference or guide” to the extent it does not conflict with Order 1050.1G.
FAA is still in the process of updating the 1050.1 Desk Reference. Airport sponsors and NEPA practitioners are aware that the “1050.1 Desk Reference” is often used as a complement to FAA Order 1050.1. FAA stated that the desk reference is still in the process of being updated and will be available as soon as it is completed.
Industry may submit comments on the DOT and FAA guidance documents, although the timeline and process are uncertain. The guidance documents were issued as interim orders; however, DOT and FAA indicate that they are soliciting public comment and may update the orders based on such comments. While the DOT press release does not mention a comment opportunity, FAA separately indicated that a Federal Register notice regarding its guidance is forthcoming. The notice will presumably inform industry stakeholders of the timeframe and manner by which comments may be submitted to the DOT and FAA. We will make airport sponsors aware of any notice as soon as it becomes available.
The DOT and FAA guidance documents are effective immediately and apply to any new actions initiated on or after June 30, 2025. Despite the interim nature of the orders, the DOT and FAA guidance documents take effect immediately. Any existing projects that are already underway must continue to follow the prior NEPA implementation guidance, i.e. FAA Order 1050.1F. Any projects that are initiated on or after June 30 must follow DOT Order 5610.D and FAA Order 1050.1G. It is unclear how FAA will determine whether a project has already been initiated and which guidance should apply. We would also expect confusion during some NEPA reviews if DOT or FAA makes changes to the documents based on comments received.
