A little-notice decision by the U.S. Court of Appeals for the D.C. Circuit last month (Nov. 12) could potentially overturn how federal agencies make many decisions on environmental issues under the National Environmental Policy Act (NEPA). It could also impact how incoming President Donald Trump attempts to assert White House power over government agencies.
The case – Marin Audubon Society v. the Federal Aviation Administration and the National Park Service — involves a long-running dispute over flights by tourism firms over national parks, pitting the Interior Department’s NPS and the Transportation Department’s FAA. After years of wrangling over the issue and how to apply rules from the White House Council on Environmental Quality setting out the path to NEPA compliance, the two agencies last year agreed that resolving the dispute did not require an environmental impact assessment statement under DEQ rules.
The Marin Audubon Society sued, claiming the deal between the NPS and the FAA failed to meet the DEQ requirements under NEPA. The specific flights are over the Golden Gate National Recreation Area, Muir Woods National Monument, San Francisco Maritime National Historical Park, and Point Reyes National Seashore.
In a 2-1 decision the court vacated the FAA rules permitting the tourist flights, remanding them to the FAA. Writing the majority opinion, Senior Judge A. Raymond Randolph wrote, “As the parties argue the case, it centers on whether the Agencies complied with regulations of the Council on Environmental Quality, an entity within the Executive Office of the President. We will not address these arguments. The CEQ regulations, which purport to govern how all federal agencies must comply with the National Environmental Policy Act, are ultra vires” [acting or done beyond one’s legal power or authority—Ed.].
Randolph added, “CEQ traces its rulemaking authority not to legislation but to an Executive Order of the President. But an executive order 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 Court reiterated and emphasized this point in Chrysler Corp. v. Brown, 441 U.S. 281 (1970): ‘The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by government departments and agencies must be rooted in a grant of such power by the Congress and subject to the limitations which that body imposes.’”
Chief Judge Sri Srinivasan dissented on the CEQ authority as an overreach: “There is no cause to reach that issue in this case.” He wrote, “First and foremost, no party challenges the CEQ’s regulations. In nonetheless reaching out to address the issue, the court contravenes ‘our established ‘principle of party presentation.’” That principle embodies the idea “that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”
He added, “Of particular salience, we have specifically and steadfastly adhered to the party presentation principle in declining to address the exact issue my colleagues venture out to decide today. Time and again, we have refrained from questioning the CEQ’s authority to adopt binding NEPA regulations because the parties did not raise the challenge.”
He argued that it was particularly valid to ignore the CEQ issue “because we are already ruling in favor of the petitioners on another ground they did raise: ‘that the Agencies’ choice to use the existing level of flights as the baseline was improper.’”
The Baker Botts law firm commented on the decision, “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.”
The Baker Botts analysis added, “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.”
Also, “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.”
–Kennedy Maize
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