Court's Denial of Review Leaves Open Questions of CEQ Authority
The U.S. Court of Appeals for the District of Columbia Circuit on Jan. 31, 2025, declined a request to review its decision that challenged the authority of the Council for Environmental Quality (CEQ), leaving open questions regarding the validity of CEQ's existing regulations and likely disrupting the National Environmental Policy Act (NEPA) framework that has been relied upon for decades.
The D.C. Circuit issued a decision last year in Marin Audubon Soc'y v. Fed. Aviation Admin., No. 23-1067, 2024 WL 4745044, at *5 (D.C. Cir. Nov. 12, 2024), pertaining to a challenge under NEPA of air tour management over national parks in the San Francisco Bay Area. (See Holland & Knight's previous alert, "Adding Fuel to the Fires Calling for Permitting Reform," Nov. 26, 2024.) Though the case was decided on other grounds, the majority stated in its decision that CEQ has no statutory basis to issue binding regulations, that CEQ was intended by Congress to be an advisory body and that presidential actions could not convert CEQ from an advisory body to a regulatory agency. In so stating, the court found that the CEQ regulations are ultra vires.
Given the significance of this decision, the Biden Administration and environmental groups sought en banc review, which would involve review of the decision by the entire panel of D.C. Circuit judges. In their request for review, the petitioners argued that the issue of CEQ's authority was not raised by any party to the case and was unnecessary to the decision, in violation of the party presentation principle, and that the decision was in conflict with decades of NEPA precedent. The parties also stressed the disorder that would be caused by the decision if it were permitted to stand.
The D.C. Circuit rejected this request on Jan. 31, 2025. In its decision to deny review, Chief Judge Sri Srinivasan stated that the panel's ruling had been on an entirely separate ground, meaning that the statements regarding CEQ's authority were unnecessary to ultimate disposition of the case. Judge Srinivasan also noted his belief that the panel should not have introduced the issue in its ruling, given that no party raised it in its briefing. Though not confirmed, this appears to suggest that the court's statements regarding CEQ authority are not binding decision but may be treated as dicta, which may be cited as persuasive authority but is not legally binding on this court and the courts below it.
It is possible that parties will seek U.S. Supreme Court review of the decision, but without any further guidance from the government, the impacts of the decision on the NEPA process remain uncertain. It should also be noted that one of the Executive Orders (EO) issued by President Donald Trump on his first day in office (Unleashing American Energy) revoked President Jimmy Carter's EO 11991, which had declared that CEQ could issue regulations to assist federal agencies with the procedural provisions of NEPA. The Trump EO requires CEQ to provide guidance on implementing NEPA and propose rescinding CEQ's NEPA regulations by Feb. 19, 2025. Such guidance and any resulting implementing regulations must expedite permitting approvals and meet deadlines established in the Fiscal Responsibility Act of 2023. The EO also requires creation of a NEPA working group to coordinate the revision of agency-level implementing regulations. Many took this as a sign that the Trump Administration supports the Marin Audubon decision and that the rescission further calls into question the validity of CEQ authority.
For more information or questions, please contact the authors.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.