Last week's unexpected opinion of the U.S. Court of Appeals for the D.C. Circuit ("DC Circuit") holding that the Council for Environmental Quality ("CEQ") lacks authority to promulgate regulations implementing the National Environmental Policy Act ("NEPA") leaves federal agencies and private projects facing tremendous uncertainty and likely delays in completing environmental reviews. In Marin Audubon Society v. Federal Aviation Administration, No. 23-1067 (D.C. Cir. Nov. 12, 2024), a divided panel ruled, nearly five decades after CEQ first adopted regulations directing federal agencies' compliance with NEPA, that the CEQ's rules are ultra vires because Congress has never given CEQ such rulemaking authority. With many agencies explicitly incorporating the CEQ rules into their own NEPA regulations, the opinion not only calls into question the proper methods for NEPA analysis, but also casts doubt on hundreds of completed and pending environmental reviews that have relied on the CEQ regulations.
Summary of Opinion
Marin Audubon Society involved a challenge to the Federal Aviation Administration's and National Park Service's joint NEPA review of an Air Tour Management Plan ("Plan") regulating commercially operated tourist flights over four National Parks. Compliance with the CEQ's NEPA regulations was an issue in the case, but a majority of the appellate panel surprised the litigants and the legal community by reaching beyond that issue and ruling, sua sponte, that CEQ lacked authority to promulgate the NEPA regulations in the first place. The panel then concluded, without relying on the CEQ regulations, that the agencies' environmental review violated NEPA by using an "improper baseline" for analysis. While agreeing with the majority to vacate the agencies' NEPA determination, Justice Srinivasan dissented, arguing the court had no reason to consider CEQ's underlying authority to promulgate its NEPA regulations because no party had raised the issue.
The status of the CEQ regulations remains unclear following the DC Circuit's opinion. The opinion vacated and remanded the agencies' Air Tour Management Plan, while inviting the parties to move for a stay to keep the Plan in place pending a new NEPA review. But the opinion did not explicitly order vacatur of the CEQ regulations, and CEQ was not a party to the appeal.
Implications of Decision
The DC Circuit holding leaves federal agencies in limbo when it comes to implementing NEPA, thereby impeding the environmental review of myriad projects. Some agencies largely rely on the CEQ regulations for NEPA compliance, without incorporating the CEQ rules into their own NEPA regulations. The DC Circuit opinion clearly rejects this approach, but it leaves open the possibility that such agencies may consider the CEQ regulations as guidance. Other agencies have adopted or incorporated by...
