In mid-November, the Court of Appeals for the District of Columbia ruled that the Council on Environmental Quality (CEQ) does not have the authority to issue government-wide National Environmental Policy Act (NEPA) regulations, a decision that could reshape environmental policymaking.
“There are good reasons, indeed there are compelling reasons, for us to determine the validity of the CEQ regulations once and for all,” the appeals court wrote. “Over many years, our court has expressed serious concerns about whether CEQ’s regulations had any ‘binding effect’ because it was ‘far from clear’ that CEQ had any ‘regulatory authority under (NEPA).’”
The Nov. 12 decision is likely to have far-reaching implications, as the CEQ has carried the authority to implement NEPA regulations for the past four decades. The agency was created in 1969 as part of NEPA and advises the president on environmental issues.
Court case
In Marin Audubon Society v. Federal Aviation Administration, the Court of Appeals for the District of Columbia issued an opinion on a 2-1 vote that found CEQ’s regulations to be invalid. In the case, environmental groups argued against the Federal Aviation Administration and the National Park Service’s decision not to complete a NEPA review of an air tour management plan that regulates flight tours over national parks in the Bay Area of California. The groups alleged the agencies violated CEQ regulations by choosing not to conduct an environmental analysis.
The appeals court did not address whether the agencies complied with the CEQ, but rather CEQ’s rulemaking authority. The court called the CEQ regulations “ultra vires,” meaning beyond one’s legal power or authority. The panel said CEQ traces its rulemaking authority not to legislation, but to a president’s executive order, which is not law within the meaning of the Constitution.
“The Supreme Court, in one of its most significant separation of powers decisions, ruled that the Constitution does not permit the president to seize for himself the ‘law-making power of Congress’ by issuing an order that, ‘like a statute, authorizes a government official to promulgate . . . rules and regulations,’” the appeals court cited, referring to a 1952 case.
In 1970, then-President Richard Nixon issued an executive order instructing the CEQ to issue guidelines to federal agencies considering environmental impact statements. In 1977, then-President Jimmy Carter issued an executive order to empower CEQ to issue regulations rather than guidelines.
The appeals court said Carter’s move embarked on “the most ambitious presidential foray into the nation’s environmental protection effort: the transformation of the CEQ from an advisory entity into a regulatory agency,” citing the article “The Role of the President’s Council on Environmental Quality in the 1990’s and Beyond.”
The court said both sides in Marin Audubon Society v. Federal Aviation Administration took for granted the agency’s authority to issue binding NEPA regulations. The authority of the agency to issue regulations on the basis of an executive order is a separation of powers issue, the appeals court wrote. The judges continued that the separation of powers and statutory interpretation issue is unremarkable, but it’s remarkable “that this issue has remained largely undetected and undecided for so many years in so many cases.”
The appeals court ruled that the agencies in the case followed CEQ’s authority and accepted the regulations as a stand-alone body of law that they must obey, as opposed to following their own rules. The court agreed with the environmental groups that it was arbitrary and capricious for the agencies to treat interim operating authority as the status quo for their NEPA analysis, ruling to vacate the air tour management plan, but rejected or declined the rest of the petitioners’ arguments.
If the appeal court’s ruling about CEQ’s authority is upheld, the CEQ’s role would become largely advisory to the Executive Office and agencies would create their own regulations. The case parties have 45 days to seek rehearing en banc. If granted, an order will vacate the original panel’s judgment, but if denied, petitions are due to the U.S. Supreme Court within 90 days. — Anna Miller, WLJ managing editor
