In a surprise ruling in Marin Audobon Society v. Federal Aviation Administration issued on November 12, the U.S. Court of Appeals for the D.C. Circuit ruled the Federal Council on Environmental Quality (CEQ) lacks legislative authority to issue formal regulations that govern other agencies in their implementation of the 1970 National Environmental Policy Act (NEPA). The decision is a not a surprise to conservative scholars who have long accused the White House and CEQ of overreach by allowing the entity to act as a “regulatory” agency and issue regulations governing other agencies’ implementation of NEPA. Rather, the decision is a surprise because neither the environmental organization plaintiff nor the federal agency defendant argued that the CEQ’s NEPA regulations were invalid.
The plaintiff alleged the FAA failed to comply with NEPA regulations in declining to carry out environmental review for a flight plan over national parks in the Bay Area of California. The federal agency defendant argued that the plan was excluded from review under CEQ regulations. The court disregarded these competing positions entirely. Instead, it found (sua sponte) that the CEQ had no authority to issue regulations and thus invalidated the entire set of NEPA regulations 40 CFR Parts 1501 to 1508 (or at least rendered them mere guidelines.) It ordered the FAA to review the flight plan under NEPA without reliance on the CEQ regulations. CEQ began issuing regulations in 1977 based on President Carter’s executive order 11991 that interpreted the NEPA statute to allow rulemaking by CEQ. While federal agencies have generally treated the regulations as binding and courts generally acquiesced, conservative lawyers questioned the practice from the start.
Going forward, other circuits are free to adopt different interpretations of NEPA. Before long, however, either Marin or another case will bring the issue to the Supreme Court, which is likely to agree with the D.C. Circuit’s narrow reading of NEPA. Without the CEQ regulations (which many federal agencies have supplemented with their own regulations), implementation of NEPA could become uncertain as the underlying NEPA statute provides only modest guidance on how to conduct reviews. CEQ could pivot to re-issuing its regulations as guidance. Other agencies could issue their own NEPA regulations. And 55 years of agency practice and procedure will likely continue to guide environmental reviews. What is certainly not going to happen in 2025 or beyond is any meaningful amendments to NEPA or other environmental statutes to clarify their application.
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