Two Things You Need to Know About the Latest NEPA Ruling

On November 12, 2024, the D.C. Circuit Court of Appeals (DC Circuit) ruled on Marin Audubon Society v. Federal Aviation Administration, Department of Transportation, and National Park Service. As part of its decision, the court ruled that the Council on Environmental Quality (CEQ) does not have the authority to issue binding regulations implementing the National Environmental Policy Act (NEPA).

ESA’s environmental planning experts are monitoring this court decision as it unfolds and wanted to provide a briefing of two important things you should know about this ruling and its potential effects on the NEPA process.

1. The DC Circuit stated that the NEPA regulations developed by the CEQ are ultra vires (acting or done beyond one’s legal power or authority)

Presidential Executive Order 11991, issued by Jimmy Carter in 1977, directed the CEQ to issue NEPA regulations and directed agencies to comply with those regulations unless prohibited by law.

For five decades, the CEQ has been issuing NEPA regulations, including changes in 2020, 2022 (Phase 1), and 2024 (Phase 2). The DC Circuit argues that no statutory language states or suggests that Congress empowered the CEQ to issue rules binding on other agencies. While the Supreme Court once wrote in 1979 that CEQ’s regulations under NEPA are “entitled to substantial deference,” the DC Circuit stated, “that Chevron-like statement did not result from an examination of CEQ’s authority to issue judicially enforceable regulations and cannot be credited in light of the Supreme’s Court ruling in Loper Bright Enterprises vs. Raimondo (a.k.a. the Chevron deference case).”

The court also stated that even though agencies have issued their own NEPA regulations, the “CEQ regulations represent the framework for all agencies’ compliance with NEPA, leaving the agencies to fill in certain details specific to their programs.” Therefore, according to the DC Circuit, the agencies have neither adopted the content of the CEQ regulations, nor incorporated those rules by reference. 

Writing in a partial dissent, Chief Judge Srinivasan stated that no party in this court case challenged the CEQ regulations, and time and time again the DC Circuit has refrained from questioning the CEQ’s authority.

2. The court found that the agencies’ reliance on their interim operating authority as the baseline was unreasonable and contrary to their duties under the National Parks Air Tour Management Act and NEPA.

The three federal agencies had determined that no environmental analysis was needed under NEPA because officially permitted tourist flights over the four National Park Service lands near San Francisco would cause minimal additional environmental impacts as compared to existing conditions. In this ruling, the court held that the agencies acted arbitrarily and failed to fully consider the environmental effects of the officially permitted flights because the agencies had treated the effects of the existing (interim) flights as a starting point. The case was remanded to the Federal Aviation Administration to evaluate a correct baseline. Based on the court’s comments, this baseline is assumed to be without the existing flights that had been taking place. 

Where do we go from here?

The parties to this case could appeal; therefore, the effects of this ruling are to be determined. As of now, the NEPA statute (42 U.S.C. section 4321 et seq.), as amended by the Fiscal Responsibility Act of 2023, and the CEQ NEPA Guidelines (40 CFR Parts 1500−1508), as revised and released in July 2024, remain in effect. However, if the case is upheld, there could be sweeping changes to the CEQ NEPA Guidelines.

In addition, we will be watching the Supreme Court’s oral arguments on Dec 10, 2024, on Seven County Infrastructure Coalition v. Eagle County, CO. While this hearing will discuss “whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority,” we will see if the CEQ’s authority is also addressed.

Do you have questions about your project and want to speak with an ESA NEPA expert? Reach out to Meredith Parkin for more information and be sure to subscribe to our newsletter for timely regulatory updates.