On November 12, 2024, the U.S. Court of Appeals for the D.C. Circuit issued a decision that goes to the heart of how the National Environmental Policy Act is implemented. In Marin Audubon Society v. Federal Aviation Administration, No. 23-1067 (D.C. Cir.), the D.C. Circuit held that the central player in the NEPA implementation framework—the White House Council on Environmental Quality (CEQ)—lacks the rulemaking authority it has long asserted.

For more than four decades, CEQ has assumed a position as the primary authority within the Executive branch for interpreting NEPA and establishing procedures to implement its requirements. Pursuant to an Executive Order, CEQ issued NEPA implementing regulations in 1978 that were considered to be binding on all federal agencies. Many agencies have adopted their own regulations or procedures for complying with NEPA’s requirements while ensuring consistency with CEQ’s regulations, in some cases adopting CEQ’s regulations by reference and in other cases adapting CEQ’s regulations to that agency’s programs. The courts have occasionally questioned CEQ’s basis for issuing binding regulations, but CEQ’s authority has largely gone unchallenged.

In Marin Audubon Society, plaintiffs challenged a NEPA analysis prepared by the FAA relating to a proposed plan for tour flights over national parks in the San Francisco Bay area. Even though the parties had not raised or briefed the issue, a majority of the D.C. Circuit panel addressed whether the FAA was required to comply with CEQ’s regulations. The court concluded that CEQ had no authority to issue NEPA regulations. Specifically, the court found that NEPA’s provisions “provide no support for CEQ’s authority to issue binding regulations,” and “[n]o statutory language states or suggests that Congress empowered CEQ to … act as a regulatory agency rather than as an advisory agency.” Instead, the Court noted that “CEQ traces its rulemaking authority not to legislation but to an Executive Order of the President,” which by itself does not confer rulemaking authority. Accordingly, the Court concluded that CEQ’s NEPA regulations, “which purport to govern how all federal agencies must comply with [NEPA],” were promulgated beyond the scope of CEQ’s legal authority.

The decision leaves the status of CEQ’s NEPA regulations uncertain. The Court held that CEQ did not have the authority to adopt binding regulations implementing NEPA but, because the parties did not directly challenge the CEQ regulations, the Court did not vacate the NEPA regulations; it instead declared them “ultra vires” and simply vacated the FAA order that was directly before the Court. However, unless this ruling is reversed, federal district courts in Washington D.C. may treat the CEQ regulations as having effectively been vacated, and other courts outside the D.C. Circuit also may be persuaded that the CEQ regulations should be treated as if they have no effect. It remains to be seen whether the federal government will seek reconsideration or rehearing en banc and, if so, whether the incoming Administration will pursue that request for reconsideration or en banc review or instead withdraw it. Notably, under both Presidents Trump and Biden, CEQ adopted NEPA regulations that each Administration purporting to be binding on federal agencies. In the meantime, the decision does not set aside other agencies’ NEPA regulations, although the court observed that “an agency cannot outsource authority over the content of its regulations to an entity that itself lacks rulemaking authority” and noted that there is a “good question” as to whether other agencies could permissibly adopt CEQ’s regulations or incorporate them by reference into their own NEPA regulations. The result is an open question regarding the validity of at least some individual agency NEPA regulations, which may present a route for further challenges.

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