In a 2-1 decision issued earlier this month, the D.C. Circuit Court of Appeals concluded that the Council on Environmental Quality (“CEQ”) does not have authority to issue binding regulations. CEQ is an administrative agency established in 1969 for the purpose of ensuring that other federal agencies meet their obligations under the National Environmental Policy Act (“NEPA”). Since the late 1970s, CEQ has issued regulations that implement NEPA. Federal agencies have followed these regulations when carrying out the NEPA process for decades while courts have consistently enforced them. However, following the D.C. Circuit’s decision in Marin Audubon Soc’y v. Fed. Aviation Admin., No. 23-1067 (D.C. Cir. 2024), it is unclear what authority CEQ will have going forward.
Background
The dispute at the center of Marin Audubon Soc’y v. Fed. Aviation Admin. concerns a plan developed by the Federal Aviation Administration (“FAA”) and the National Park Service (“NPS”) to allow tourist flights over four national parks in northern California. Specifically, the case centered on whether the defendants had complied with CEQ’s NEPA regulations by failing to complete the full NEPA process. Neither the plaintiffs nor defendants questioned CEQ’s ability to issue binding regulations.
National Environmental Policy Act
NEPA was signed into law on January 1, 1970. It is widely regarded as the first major environmental law in the United States. The primary purpose of NEPA is to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment[.]” 42 U.S.C. § 4321. To achieve this goal, NEPA outlines a process by which federal agencies can assess the environmental impacts of their actions before making final decisions. NEPA is often referred to as a procedural statute, because while it requires agencies to complete an environmental analysis process prior to carrying out certain activities, it does not require a specific substantive result.
According to the text of NEPA, agencies must carry out environmental analysis for any federal action that is expected to “significantly affect[t] the quality of the human environment[.]” 42 U.S.C. § 4332(2)(C). The analysis must take the form of a “detailed statement” that includes information regarding: (1) reasonably foreseeable environmental effects of the proposed action; (2) any reasonably foreseeable adverse environmental impacts which cannot be avoided if the proposed action is taken; (3) a reasonable range of alternatives to the proposed action, including an alternative where the action is not taken; (4) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of federal resources that would be involved if the proposed action is carried out. 42 U.S.C. § 4332(2)(C).
NEPA provides two levels of environmental review. For those proposed actions that have a “reasonably foreseeable significant effect on the quality of the human environment,” agencies should issue an environmental impact statement (“EIS”). 42 U.S.C. § 4336(b)(1). For those actions that do not have a reasonably foreseeable significant effect on the quality of the human environment, agencies should prepare a “concise” document known as an environmental assessment (“EA”) that will either establish the agency’s “finding of no significant impact” or determine that preparation of an EIS is necessary. 42 U.S.C. § 4336(b)(2). NEPA also allows federal agencies to identify categories of actions that do not have significant effects on the environment. Such actions are called “categorical exclusions” and do not require NEPA review. 42 U.S.C. § 4336(b)(2). NEPA specifically instructed all federal agencies to review “their present statutory authority, administrative regulations, and current policies and procedures” to bring them into conformity with the NEPA process. 42 U.S.C. § 4333.
Along with requiring federal agencies to conduct an environmental review process for certain actions, NEPA also established CEQ. According to the statutory language, it is the “duty and function” of CEQ to “review and appraise” federal government activity to ensure NEPA compliance; to “develop and recommend to the President national policies to foster and promote the improvement of environmental quality”; to “conduct investigations” relating to environment quality; and to report to the President at least once a year “on the state and condition of the environment.” 42 U.S.C. § 4344.
In 1970, President Nixon issued an Executive Order specifically directing CEQ to issue “guidelines” to federal agencies on how to prepare the kind of detailed statements NEPA required. Then, in 1977, President Carter issued a separate Executive Order empowering CEQ to issue regulations rather than guidelines. CEQ’s first round of NEPA regulations were issued in 1978 and established a framework that is still largely in effect today. The regulations are detailed and include requirements for completing the NEPA process that range from page limits on EIS and EA documents to the level of environmental impacts that agencies are required to consider. Since 1978, federal agencies have followed those regulations while drafting NEPA documents while the Supreme Court in Andrus v. Sierra Club, 442 U.S. 347 (1979), has held that CEQ’s NEPA regulations are “entitled to substantial deference.”
Case Overview
The plaintiffs in Marin Audubon Soc’y v. Fed. Aviation Admin. initiated their lawsuit in early 2023 to challenge a finalized plan between the FAA and the NPS that would allow tourism flights to operate over four parks in northern California. In 2000, Congress passed the National Parks Air Tour Management Act (“Parks Act”) which requires the FAA and the NPS to work together to develop plans regulation tour flights over national parks throughout the United States. Crucially, the Parks Act requires the agencies to comply with NEPA when developing air tour management plans. The plan to allow tour flights over the four California parks was first proposed in 2011, but due to a series of delays was not finalized until 2023.
When the FAA and the NPS first announced the plan, they also announced their intent to develop an EA as part of their NEPA compliance. However, the agencies ultimately chose not to complete an EA or an EIS, instead finding that the air tour management plan was categorically exempted from NEPA review. That decision prompted the plaintiffs in Marin Audubon Soc’y v. Fed. Aviation Admin. to file suit, claiming that the FAA and the NPS had violated NEPA by failing to conduct NEPA review.
D.C. Circuit Decision
A three-judge panel of the D.C. Circuit Court of Appeals issued its ruling in Marin Audubon Soc’y v. Fed. Aviation Admin. on November 12, 2024. While the court concluded that the FAA and the NPS had violated NEPA by approving the air tour management plan without drafting an EA or an EIS, the bulk of the court’s decision focused on whether CEQ had authority to issue NEPA-implementing regulations. Ultimately, the court concluded that CEQ lacked that authority.
The court began its opinion by providing an overview of NEPA and CEQ. According to the court, the text of NEPA does not grant CEQ specific rulemaking authority. While NEPA provides that CEQ shall “make recommendations to the President,” Congress did not include language instructing CEQ to draft rules and regulations to implement NEPA. Instead, CEQ relies on the Executive Orders issued by Presidents Nixon and Carter as the basis for its rulemaking authority. According to the D.C. Circuit, agencies cannot derive rulemaking authority from Presidential Executive Orders. The court referred to the Take Care Clause of the U.S. constitution which provides that the President “shall take care that the laws with faithfully executed[.]” The Take Care Clause is regarded as both a key source of presidential power within the constitution, but also as a major limitation on that power because it provides the president with a duty to faithfully execute the laws passed by Congress. In Marin Audubon Soc’y v. Fed. Aviation Admin., the court concluded that “[t]he CEQ regulations are by no means a mere delegation of the President’s authority under the Take Care Clause.” In other words, the court determined that the Take Care Clause does authorize the President to grant federal agencies rulemaking authority to “faithfully execute” the laws passed by Congress. According to the D.C. Circuit, only Congress has the authority to grant federal agencies rulemaking power. Because NEPA does not specifically instruct CEQ to adopt implementing regulations, the D.C. Circuit concluded that CEQ does not have the authority to issue regulations, and any regulations it has issued are non-binding.
The decision was issued by a three-judge panel, but only two judges joined in the majority ruling. The third judge on the panel dissented. Primarily, the dissenting judge noted that neither the plaintiffs nor the defendants in Marin Audubon Soc’y v. Fed. Aviation Admin. challenged CEQ’s regulations. According to the dissent, the majority’s opinion violated the “principle of party presentation,” a legal concept which provides that judges may only consider the legal questions that are presented and argued before the court. The dissent concluded that there was no reason for the majority to consider the validity of the CEQ regulations because no one had asked them to do so.
Going Forward
It is currently unclear exactly what impact the decision in Marin Audubon Soc’y v. Fed. Aviation Admin. will have. While the court concluded that the NEPA-implementing regulations issued by CEQ were non-binding, the court did not vacate the regulations. However, the decision does establish a precedent that CEQ lacks rulemaking authority, and that all regulations it issues are non-binding. The parties are expected to seek either an en banc review of the decision, meaning that they will request that the matter be referred to all the judges sitting on the D.C. Circuit instead of another three-judge panel, or an appeal to the Supreme Court.
In the meantime, the ruling is likely to cause delays for any activity currently undergoing NEPA review as federal agencies determine how to proceed. If the decision ultimately withstands further judicial review, federal agencies may face the challenge of drafting their own NEPA regulations or otherwise establishing some sort of policy to ensure that the agency meets its NEPA obligations. At the moment, the majority decision in Marin Audubon Soc’y v. Fed. Aviation Admin. has provided more questions than answers.
To read the decision in Marin Audubon Soc’y v. Fed. Aviation Admin., click here.
To read the text of NEPA, click here.
For more NALC resources on NEPA, click here.