A federal judge has struck down the Biden administration’s 2024 environmental review policy, ruling the Council on Environmental Quality (CEQ) lacks the authority to issue binding regulations.
The lawsuit, brought by 21 states led by Iowa and North Dakota, challenged CEQ’s authority under the National Environmental Policy Act (NEPA).
On Feb. 3, Judge Daniel M. Traynor ruled in favor of the plaintiff states, striking down the 2024 rule. In his ruling, Traynor found that NEPA only authorized CEQ to make recommendations to the president, not to promulgate binding rules that govern agency behavior.
“NEPA is not ambiguous,” Traynor wrote. “The plain text of the statute does not give CEQ authority to issue binding regulations. NEPA only authorizes CEQ to make recommendations to the president.”
In 2024, CEQ issued a sweeping rule to streamline the environmental review process and align regulations with the 2023 Fiscal Responsibility Act, which had made statutory changes to NEPA. The rule aimed to increase consistency, improve efficiency and reinstate provisions from earlier regulations that CEQ believed were more effective.
Among its changes, the rule removed certain aspects of 2020 Trump-era revisions, such as limitations on the scope of environmental review and restrictions on what agencies could consider as “effects” of an action. Additionally, it introduced requirements for agencies to incorporate Indigenous knowledge in their assessments and updated the definition of mitigation measures.
Ruling
“For forty years CEQ’s authority has been assumed, but these assumptions by the courts and others do not constitute binding precedent,” Traynor wrote.
He continued that the 2024 rule was arbitrary and capricious, highlighting contradictions in its provisions. For example, CEQ allows project applicants to submit environmental analyses while prohibiting them from concluding that their projects would have “no significant impact.”
Another point of contention was the Indigenous knowledge requirement. The court found that CEQ failed to provide a clear or workable definition of Indigenous knowledge while mandating its inclusion in all environmental reviews. According to the ruling, this created legal uncertainty and compliance difficulties for federal agencies and project applicants.
Given these findings, Traynor vacated the 2024 rule in its entirety, rejecting CEQ’s request for severability, which would have allowed certain provisions to remain in effect. The ruling effectively reinstated the NEPA regulations as they stood prior to the 2024 rule’s implementation, maintaining the framework that existed as of June 30, 2024.
Traynor concluded that the issue of extending authority by executive order rather than by checks and balances extends beyond CEQ and NEPA to the broader disarray of laws governing administrative agencies and executive orders.
As Traynor emphasized, power must remain properly allocated: “It is the job of Congress to enact the law. It is the job of the president to enforce the law. It is the job of the Judiciary to determine the boundaries of the law.”
The American system was designed to prevent the consolidation of power that had plagued monarchies, a struggle for which many fought and died, Traynor said. If Congress intends for CEQ to issue regulations, it must formally grant that authority rather than allow executive overreach to erode constitutional boundaries, he finished.
Background
NEPA, enacted in 1969, was designed to ensure federal agencies assess the environmental impact of their actions. It requires agencies to provide a “detailed statement”—now known as an Environmental Impact Statement—before proceeding with projects that could significantly affect the environment. The law also established the CEQ within the Executive Office of the President to oversee environmental policies and provide guidance on implementing NEPA’s provisions.
Initially, CEQ’s role was advisory, issuing guidelines rather than legally binding regulations. However, in 1977, then-President Jimmy Carter issued an executive order directing CEQ to create enforceable regulations, a move that went largely unchallenged for decades.
On May 21, 2024, a coalition of states filed a lawsuit challenging the 2024 rule. The states argued that CEQ had exceeded its statutory authority, acted arbitrarily and capriciously, and violated the Administrative Procedure Act. They contended that CEQ’s authority under NEPA was strictly advisory and that the agency lacked the power to issue binding regulations. The plaintiffs further argued that requiring agencies to integrate Indigenous knowledge without a clear definition made compliance unduly burdensome.
Reactions
North Dakota Attorney General Drew Wrigley applauded the court for invalidating the Biden administration’s NEPA Rule.
“This decision is great for North Dakota, but also great for economic and infrastructure development around the entire country,” Wrigley said in a statement. “I applaud the district court for seeing the rule for what it was, and also for recognizing that agencies cannot promulgate rules when Congress has never actually given them any rulemaking authority.”
Earthjustice attorney Jan Hasselman said the ruling would weaken environmental rules, but it should also be applied to the current administration’s effort to undo protections.
“The court’s ruling will weaken environmental reviews and will further harm communities already struggling with polluted land, air, and water,” Hasselman said. “But the same standard will have to be applied to the current administration’s efforts to undo decades of environmental progress and strip away critical protections for communities through executive actions. According to this court decision, many of Trump’s actions are also illegal.” — Charles Wallace, WLJ contributing editor
