On January 31 — in Marin Audubon Society et al. v. FAA et al. — the D.C. Circuit Court declined petitions for en banc review of a panel’s November 2024 ruling that the White House Council on Environmental Quality (CEQ) does not have the legal authority to promulgate regulations implementing the National Environmental Policy Act (NEPA).
The dispute centers around claims made by environmental groups that the Federal Aviation Administration and National Park Service violated NEPA when they approved tour flights over California’s Bay Area parks.
In its decision, the court reasoned that because the relevant CEQ regulation does not require an agency to do anything but, instead, gives an agency the option to rely on a categorical NEPA exclusion, any conclusion that the CEQ lacks authority to issue binding regulations would not affect the agencies’ challenged choice to make use of a categorical exclusion. Therefore, there was no cause to grant en banc rehearing.
Similarly, on Monday, a North Dakota federal judge in State of Iowa v. Council on Environmental Quality found that the CEQ exceeded its authority when it adopted a rule governing the U.S. environmental review process for infrastructure projects, stating that the CEQ lacks authority to issue regulations (see order here). NEPA reviews are frequently litigated, which can cause delays for construction projects, often lasting several years. Thus, the 2024 rule sought to streamline analysis under NEPA (covered by ELM here).
However, the court found that for the past 40 years, all three branches of government operated under the erroneous assumption that CEQ had authority. Rather, Congress never authorized CEQ to adopt regulations, only to make recommendations to the president on national policy. Therefore, because aspects of CEQ regulations are incorporated into NEPA’s statutory language, these requirements may serve as a guide to agency environmental review going forward in the absence of CEQ regulations.
Proponents of these recent NEPA rulings believe they will promote economic and infrastructure development around the country. However, opponents of these rulings argue they will weaken environmental reviews and will further harm communities already struggling with polluted land, air, and water.
Notably, we are also still awaiting a decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, which was argued before the U.S. Supreme Court on December 10, (covered by ELM here). The issue to be decided is whether NEPA requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority. Therefore, it appears that 2025 is already shaping up to be a big year for NEPA with more to come.
