NEPA ruling will have far reaching implications for CEQ
The recent Marin Audubon Society v. Federal Aviation Administration decision was handed down by the D.C. Circuit Court of Appeals earlier this week. This case raises serious questions about the validity of federal regulations implementing the National Environmental Policy Act (NEPA), which Congress passed in 1970. Agencies across the government rely on NEPA regulations issued by the White House Council on Environmental Quality (CEQ). However, in the Marin Audubon case, the court held that NEPA did not authorize CEQ to issue regulations that are legally binding on other agencies. The parties to the case can seek rehearing before the full D.C. Circuit (“en banc”), but if the case stands, some NEPA compliance activities will be subject to uncertainty as the agencies determine how to respond.
CEQ is responsible for coordinating federal environmental efforts, developing national environmental policies, and ensuring that federal agencies meet NEPA’s requirements. Serving as the chief environmental policy advisor to the President, CEQ traditionally issues guidance and regulations on NEPA compliance, climate change, environmental justice, and sustainability. CEQ’s regulations help federal agencies assess and disclose the environmental impacts of their projects and activities, fostering transparency and accountability in government projects affecting the environment.
The court relied primarily on the text of NEPA itself and found that the statute did not grant CEQ the authority to issue implementing regulations. Rather, CEQ issued its NEPA regulations under the authority of a Carter-era executive order. According to the court, a federal agency must have statutory authorization to issue binding regulations. Accordingly, CEQ’s role should be advisory rather than prescriptive, leaving agencies to interpret NEPA’s mandates independently. This ruling could upend decades of established environmental review processes, introducing immediate and far-reaching implications for NEPA compliance, environmental regulations, and federal infrastructure projects, including those related to water resources.
Ruling Implications for NEPA Requirements
The ruling calls into question the validity of longstanding NEPA requirements that federal agencies use CEQ’s regulations as a binding framework. One court’s opinion does not control other judicial circuits, but if the case stands, federal agencies may find it untenable to continue under the current regulations. With CEQ’s authority under scrutiny, agencies may face uncertainty in conducting environmental assessments (EAs) and environmental impact statements (EISs). This could lead to a fragmented application of NEPA requirements across agencies, resulting in inconsistencies and increased potential for legal challenges.
Possible Administrative Responses
- Current Biden Administration: Likely to seek a stay on the ruling, the Biden administration may seek a rehearing en banc or petition the Supreme Court to hear the case, while also issuing interim guidance for federal agencies to maintain NEPA compliance as litigation continues.
- Incoming Trump Administration: Given past efforts to streamline NEPA processes, the Trump administration may choose not to contest the decision, potentially viewing it as an opportunity to further reduce regulatory burdens. This approach could favor expedited environmental reviews with fewer regulatory requirements. Federal agencies and the industries they regulate may consider whether agency-specific NEPA regulations would be advisable, based on each agency’s authorizing statutes and NEPA itself.
Impact on Ongoing Infrastructure Projects
This decision introduces substantial uncertainty for ongoing and planned infrastructure projects. Projects currently undergoing NEPA reviews may face delays as agencies reassess their procedures without CEQ’s regulatory guidance. The agencies will need to carefully consider the text of NEPA itself and their own authorities. This could result in project postponements, increased litigation risks, and potential cost overruns. However, in the absence of binding regulations, some projects might proceed with fewer environmental reviews, expediting timelines but raising environmental and legal concerns. With the NEPA playbook less certain, any course of action may provide an opening for new legal challenges.
Broader Impact on CEQ-Related Regulations and Guidance
Beyond NEPA, the decision may affect other CEQ guidance documents and regulations:
- Greenhouse Gas and Climate Change Guidance: CEQ has issued directives requiring agencies to consider climate impacts in NEPA reviews. This ruling could make such considerations optional, potentially limiting the scope of climate analysis in future projects.
- Cumulative Impacts Guidance: CEQ’s emphasis on analyzing cumulative impacts in environmental reviews may weaken, possibly leading to narrower impact analyses that exclude combined environmental effects.
- NEPA Efficiency Measures: Recent CEQ guidance has encouraged more efficient NEPA review timelines. This decision could lead to either lengthier or expedited processes, depending on agency interpretation without a unified CEQ framework.
- Environmental Justice Guidance: Guidance urging agencies to consider environmental justice in NEPA reviews may now see inconsistent application if CEQ’s role is limited to advisories.
- Interim Guidance on Emerging Environmental Issues: Directives on issues like PFAS contamination or other evolving challenges may lose enforceability, making them optional for agencies.
In summary, the court’s decision has the potential to reshape environmental policy, impacting how federal agencies conduct environmental reviews and manage infrastructure projects. The responses from the current and incoming administrations will be critical in determining how these impacts unfold, with implications for environmental protection, regulatory consistency, and project timelines across sectors.
