A federal court in Washington, D.C. recently ruled that the White House Council on Environmental Quality (CEQ) does not have authority to issue environmental regulation sunder the National Environmental Policy Act of 1969, commonly known as NEPA. This decision follows the Supreme Court’s recent case overruling long-standing precedent known as the “Chevron rule,” deferring to government agencies in their particular areas of expertise.
NEPA requires federal agencies to review the environmental impact of their decisions before they are made. Environmental review happens before agencies issue permits for discharging pollution to air or water; constructing bridges; timber harvesting; and livestock grazing, among other actions.
The case, called Marin Audubon Society v. FAA, challenged an environmental review that the FAA conducted relating to tourist flights over national parks in California. Before reaching that issue, the Court first found that all CEQ-enacted NEPA regulations are invalid because CEQ’s regulations were made under power granted by a presidential order instead of by Congress. The court said, “NEPA provide[s] no support for CEQ’s authority to issue binding regulations. No statutory language states or suggests that Congress empowered CEQ to issue rules binding on other agencies—that is, to act as a regulatory agency rather than as an advisory agency. NEPA contains nothing close to the sort of clear language Congress typically uses to confer rulemaking authority.”
In addition, due to the recent Supreme Court decision overturning the Chevron rule, the court gave no weight to an earlier Supreme Court case finding that CEQ’s regulations are entitled to substantial deference. However, the Court did not expressly vacate the CEQ regulations.
The aftermath of Marin Audubon could be substantial, making any agency action taken under the CEQ rules vulnerable to being thrown out. There are hundreds of proposed federal agency actions pending across the country that may now require re-assessment in light of the holding in Marin Audubon. At the very least, the case creates uncertainty about the scope of NEPA obligations, particularly going into a change in administration. Given this substantial uncertainty, for now the only clear guidelines are those in the NEPA statute itself.
