On November 12, 2024 the U.S. Court of Appeals for the D.C. Circuit Court ruled that the Council on Environmental Quality (CEQ) does not have authority to issue implementing regulations for the National Environmental Policy Act (NEPA), as it has done for over 40 years. The CEQ was established by Congress in 1969 as a part of NEPA, and additional responsibilities were provided by the Environmental Quality Improvement Act of 1970. The CEQ is an entity within the Executive Office of the White House that coordinates policy and advises the President on environmental issues. Perhaps more importantly, it is responsible for implementing NEPA and providing guidance regulations that were, until last week, considered to be binding on all federal agencies throughout decades of NEPA litigation.
NEPA requires environmental review for all proposed major federal actions. The content of the statute is fairly bare bones, and much of the substance comes from regulations issued by agencies and the CEQ. In 1970 President Nixon issued Executive Order 11514, which authorized the CEQ to issue guidelines to federal agencies for the preparation of environmental review documents that are required under NEPA. Since that time, CEQ has issued regulations to guide federal agencies in the NEPA process including regulations on the form of environmental review, categorical exclusions, programmatic environmental documents, lead and cooperating agencies, detailed explanations of contents of environmental review documents, and how to incorporate relevant information into their review — including how climate change plays into a project’s impacts. This status quo had previously been approved in 1979 by the U.S. Supreme Court which held in Andrus v. Sierra Club that “CEQ’s interpretation of NEPA is entitled to substantial deference.”
The recent ruling comes from a case titled Marin Audubon Society v. Federal Aviation Administration. At issue in this case was a NEPA analysis — or rather lack of analysis — prepared by the Federal Aviation Administration (FAA) for a plan to allow tourist flights over national parks in the San Francisco Bay Area. The Marin Audubon Society was attempting to force the FAA to prepare NEPA analysis, but the FAA claimed that the tourist flights would have minimal or no additional environmental impact, and therefore did not require environmental review. Both parties relied on CEQ regulations as part of their arguments.
Sounds like a fairly typical environmental lawsuit, right? But in a shocking curveball, the DC Circuit Panel ruled, without either party asking them to, that the parties shouldn’t bother arguing whether the FAA had followed the CEQ’s regulations because the CEQ had no authority to issue those regulations. Technically, the court did not vacate (or cancel) the NEPA regulations but rather declared them “ultra vires” — a Latin phrase meaning “beyond the powers” in reference to an agency (in this case the CEQ) going beyond the legal scope of its authority — and vacated the FAA order.
What does this ruling mean for environmental review? Dozens of bedrock assumptions about the National Environmental Policy Act aren’t actually codified into law but rather have been implemented via regulations. Some agencies have issued their own regulations but many simply adopted the CEQ regulations by reference. This ruling, if upheld, throws many of those regulations out the door and would seriously weaken federal environmental review. Notably, neither the FAA nor the Marin Audubon Society asked for or wanted this outcome because it creates so much uncertainty. But that didn’t stop these judges from overturning decades of law. This ruling just another in a long line of recent cases that have sought to weaken environmental review by attacking the underlying assumptions of our environmental laws.
Federal district courts in D.C. may treat the CEQ regulations as effectively vacated, though future rulings will provide more clarity. If the regulations are treated as vacated, the CEQ’s role would become largely advisory to the Executive Office, with individual agencies needing to create their own regulations. This could lead to inconsistencies in implementing environmental rules, as each agency would have to fill in regulatory gaps. Moreover, regulations addressing issues like greenhouse gas emissions in NEPA analyses are unlikely to be replicated under a Trump-controlled Environmental Protection Agency, potentially allowing projects to proceed without comprehensive environmental reviews and increasing the use of categorical exclusions. Without CEQ regulations, the NEPA statute would be left largely unsupported until agencies develop their own rules — an effort that would be shaped by the Trump administration’s priorities. Inconsistent implementation is a foreseeable challenge if agencies independently craft regulations. While Congress could codify prior CEQ regulations, such a move is unlikely, particularly under Trump’s influence.
So what happens next? If the Marin Audubon Society or the FAA chooses, they can petition for an “en banc” rehearing, in which all judges within the district would reconsider the case. The broader “en banc” panel could then issue a new ruling with a less explosive interpretation of CEQ’s authority. In the meantime, the ruling could result in conflicting decisions among lower federal courts across the country, as judges have to decide whether or not to follow the D.C. Circuit Court’s lead. Any move to have the decision overturned must come swiftly, as it is unlikely that Audubon would want this case reviewed by a Supreme Court favorable to the Trump administration and opposed to environmental regulation.
Notably, EPIC remains engaged in ongoing litigation to uphold CEQ regulations that incorporate traditional ecological knowledge and environmental justice considerations into NEPA reviews. If the logic of Marin Audubon were applied in that case, the court would hold that CEQ never had the authority to issue those regulations in the first place. We will keep you informed about further developments.
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