In an opinion published on November 12, 2024, the U.S. Court of Appeals for the D.C. Circuit in Marin Audubon Society v. Federal Aviation Administration (D.C. Cir. 2024) 121 F.4th 902, found that the Council on Environmental Quality’s (CEQ’s) regulations implementing the National Environmental Protection Act (NEPA) were ultra vires and thus invalid. The court held that CEQ lacked authority to issue such regulations because its rulemaking authority was tied not to a Congressional act but to a presidential Executive Order.
BACKGROUND
The National Parks Air Tour Management Act of 2000 requires the Federal Aviation Administration (FAA) and the National Park Service (NPS) to develop plans regulating tour flights over national parks throughout the United States. Pursuant to the Act, the FAA and NPS issued an Air Tour Management Plan governing tourist flights over four Bay Area, California national parks: the Golden Gate National Recreation Area, Muir Woods National Monument, San Francisco Maritime National Historical Park, and Point Reyes National Seashore. The Agencies determined that they did not need to prepare an environmental analysis under NEPA because the Plan, as compared to what currently existed, would cause little to no additional environmental impacts.
THE COURT OF APPEALS’ OPINION
Several environmental organizations and one area resident petitioned for review of the Plan, arguing that the Agencies violated NEPA and the CEQ’s NEPA regulations. Petitioners argued that the Agencies violated CEQ’s regulations by foregoing an environmental assessment; the Agencies denied the claim and defended their action by invoking the same regulations.
The D.C. Circuit declined to address the merits of these arguments and instead independently held that CEQ’s regulations—which purport to govern how all federal agencies must comply with NEPA—are ultra vires and thus invalid.
Historical Legal Background
The CEQ traces its rulemaking authority not to a legislative act, but to a presidential Executive Order (EO). But because an EO is neither legally binding nor has the force of law, CEQ’s authority to issue regulations raises a separation of powers issue. NEPA, on the other hand, is a legislative act that Congress adopted in 1969, which requires each federal agency to issue a detailed statement addressing the environmental impact of any proposed major federal action that significantly affects the quality of the human environment. All federal agencies must develop procedures that implement NEPA. The Act also created the CEQ within the Executive Office of the President, to be run by three presidentially appointed Commissioners who are confirmed by the Senate. CEQ’s job is to “review and appraise” agencies’ compliance with NEPA, make recommendations to the President with respect thereto, and develop and recommend to the President national policies to foster and promote the improvement of environmental quality.
In 1970, President Nixon issued an EO instructing CEQ to issue guidelines on how federal agencies should prepare the detailed environmental analyses NEPA required. CEQ subsequently published a memorandum with guidelines for federal agencies to consider when considering or preparing environmental impact statements. At the time, several courts regarded CEQ’s role as “merely advisory” because it lacked authority to prescribe regulations that governed or mandated compliance with NEPA. CEQ, however, held a different view, and considered its NEPA guidelines to be mandatory non-discretionary standards that federal agencies must comply with. The D.C. Circuit in Sierra Club v. Morton (1975) 514 F.2d 856 agreed that CEQ could equivocate its guidelines as legally binding rules that were entitled to great respect and heightened deference.
In 1977, President Carder issued an EO that empowered CEQ to issue “regulations,” as opposed to “guidelines,” which required all federal agencies to comply with CEQ’s NEPA regulations unless doing so would violate federal law. In response, CEQ invoked the EO and “the President’s Constitutional and statutory authority” to issue 92 new regulations, which prescribed uniform standards that were binding on all federal agencies, courts, and NEPA litigants. The framework promulgated by those largely remains in effect today.
CEQ’s NEPA Regulations are Ultra Vires
Based on CEQ’s and NEPA’s historical background, the D.C. Circuit explained that executive agencies, such as the FAA and the NPS, are statutory creatures that have no power to act except to the extent authorized by Congress. Thus, for CEQ’s regulations to be legally binding on those agencies, a nexus must be established between the regulations and some delegation of Congressional legislative authority. In other words, the court must determine whether CEQ, as an executive or independent agency, has statutory authority from Congress to issue its NEPA regulations.
Although CEQ publishes its NEPA regulations in the Code of Federal Regulations, such publication is no measure of the agency’s authority to issue the rules that appear there. Here, NEPA’s provisions provide no support for CEQ’s authority to issue binding regulations. No statutory language states or suggests that Congress empower CEQ to issue rules binding on other agencies—that is, to act as a regulatory, rather than advisory, agency. The court reiterated: “NEPA contains nothing close to the sort of language Congress typically uses to confer rulemaking authority.”
The court also noted that “[n]o statute confers rulemaking authority on CEQ.” The court cited the Environmental Quality Improvement Act of 1970 as an example, which established the Office of Environmental Quality that is headed by the CEQ Chairman. Even as the director of that office, CEQ’s chairman only has the authority to “assist” other federal agencies and may only “promulgate regulations” related to the Office’s funding for research studies and projects.
The court qualified that the Supreme Court’s prior pronouncements on CEQ’s regulations could not rescue them. Although the Court once wrote that those regulations were “entitled to substantial deference,” the statement did not result from the Court’s examination of CEQ’s authority to issue judicially enforceable regulations.
The court further concluded that CEQ’s regulations were not a delegation of the President’s authority under the Constitution’s “Take Care Clause.” While EOs are focused solely on the internal management of the Executive Branch—and thus create no private rights and are not judicially reviewable—NEPA imposes statutory obligations that agencies must execute, which in turn affect private parties who make seek judicial review of those agencies’ actions. The court reasoned: “If all federal agencies are bound by the CEQ regulations and must follow them in carrying out their obligations under NEPA, and if the regulations are enforceable by courts, then those regulations cannot be justified solely as an exercise in a President’s oversight of his Administration.” To this end, the Supreme Court has previously held that the Take Care Clause cannot be used to bypass agencies’ limited status as “creatures of statute” because the Constitution does not permit the President to seize Congress’ lawmaking power by issuing an order that, like a statute, authorizes a government official to promulgate rules and regulations.
Based on these foregoing reasons, the court held that CEQ had no lawful authority to promulgate NEPA regulations that are binding on federal agencies.
– Bridget McDonald