On November 12, the U.S. Court of the Appeals for the D.C. Circuit shattered the implementation framework of one of the nation’s foundational environmental laws, the National Environmental Policy Act (NEPA). In a 2-1 decision in Marin Audubon v. Federal Aviation Administration, the panel majority found that the Council on Environmental Quality (CEQ) regulations, “which purport to govern how all federal agencies must comply with the National Environmental Policy Act, are ultra vires.” In other words, CEQ, an entity within the Executive Office of the President, has never had authority to issue regulations implementing the statute.
Senior Judge A. Raymond Randolph, joined by Senior Judge Karen LeCraft Henderson, reached this conclusion by raising newfound separations of powers concerns, despite the long-held understanding that CEQ’s implementing regulations were binding law. Even more surprising, and noted by Chief Judge Sri Srinivasan in dissent, was that neither party had even raised the issue in this case, so it did not benefit from briefing by the litigants.
Much could (and undoubtedly will) be said about the motivations behind the decision, its position within the broader trajectory of agency authority being diminished by the federal courts, the strained appearance of and reliance on the Supreme Court’s Loper Bright decision, and the fact that the remedy failed to help the “winning” party (a Northern California non-profit with a goal of conserving and restoring natural ecosystems).
For now, given the central role NEPA plays in evaluating federal agency actions, and the importance of CEQ guidance and regulations for agencies seeking to faithfully carry out their statutory and regulatory responsibilities, this blog examines what this decision might mean for environmental practitioners and policymakers.
Created by NEPA, CEQ has since 1978 set out the regulatory framework for how federal agencies should approach environmental reviews that the statute requires. CEQ’s regulations, which both codified and extended judicial decisions, remained largely unchanged for over 40 years, until the Trump Administration updated them in 2020. The Biden Administration repealed those changes, and issued changes of their own—although those revisions are currently being challenged in federal court.
What happens next?
- An appeal? The defendant agencies, the Federal Aviation Administration (within the Department of Transportation) and the National Park Service (within Interior), lost the case and could seek rehearing by the full suite of 11 active D.C. Circuit judges (known as en banc review). They have 45 days from the decision to do so. Such a hearing would most likely take place after the Trump Administration takes office, and whether the new Administration will continue to defend CEQ authority to issue NEPA implementing regulations is uncertain. If the en banc court takes the case and reaches a different outcome, Supreme Court review is possible—but if Marin Audubon lost, it might not seek review given the Court’s recent hostility to federal environmental protections, as evidenced by recent decisions in West Virginia v. EPA, Sackett v. EPA, Loper Bright Enterprises v. EPA, and Ohio v. EPA.
- Other circuits? A decision of the D.C Circuit is binding only on that court (and the district court in DC). That means CEQ’s regulations remain binding in all other federal circuits unless and until those circuits or the U.S. Supreme Court hold otherwise, or if there is future CEQ action eliminating or altering its regulations.
- Merely a demotion? Should the decision ultimately survive, Marin Audubon does not strike the text of what CEQ has done. Instead, it effectively demotes that language from binding law to guidance. Accordingly, federal agencies can continue to rely on that structure for how to conduct environmental reviews.
- Fewer NEPA cases? Litigants challenging environmental reviews commonly point to defects in how an agency complied with CEQ’s NEPA regulations, including about the scope and substance of the review, elements well-known to NEPA practitioners: whether the agency prepared the proper document and what that included, the purpose and need statement, evaluation of alternatives, discussion of impacts or mitigation measures. Some of these are based in the statute and/or embedded in judicial precedent, but stripping the CEQ regulations of their binding power may mean that some litigants will have fewer legal hooks to pursue, and potentially reducing judicial oversight of federal environmental reviews (at least in the D.C. Circuit).
- NEPA regulations at the agencies? Most federal agencies have adopted their own implementing procedures for NEPA that apply to that agency. The decision contemplates these but does not rule on their validity. It suggests, in a footnote, that regulations that merely incorporate CEQ’s version by reference may be suspect. Whether a challenge to a specific agency’s NEPA regulations, promulgated after notice-and-comment, would succeed is not decided here, but the decision does raise questions about what might survive judicial review.
This all against a background of statutory updates made to NEPA by last year’s Fiscal Responsibility Act. That law provided the first major update of NEPA in decades, reaffirming and enshrining into law many provisions that existed formerly as CEQ regulation. Notably, in making those updates, Congress did not question the existence of CEQ regulations nor alter CEQ’s role within the overall NEPA scheme. Marin Audubon did not discuss these recent developments or how they might be relevant to evaluating CEQ authority.
It also comes at a time when the Supreme Court hears oral arguments in another potentially significant NEPA case, Seven County Infrastructure Coalition v. Eagle County. That case, scheduled for oral argument on December 10, could further restrict the scope of what agencies need to consider when doing environmental reviews.