Marin Audubon Society and its Potential Impact on the Future of NEPA
Benjamin Foster
In November 2024, the U.S. Court of Appeals for the D.C. Circuit decided Marin Audubon Society v. Federal Aviation Administration. The Court went beyond the scope of the arguments made to hold that the White House Council on Environmental Quality (CEQ) had no authority to issue regulations implementing the National Environmental Policy Act (NEPA).[1] Although the ruling is binding only on the D.C. circuit, the decision undercuts fifty years of accepted legal understanding and contains the potential to reshape NEPA by providing a legal precedent to challenge future implementation.
Background
NEPA was passed in 1969 to “use all practicable means and measures…to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”[2] It applies to all actions undertaken by federal agencies, as well as to private actions that receive federal funding or require approval such as a permit from a federal agency, require passage across federal lands, or affect air or water quality regulated by federal law.[3] NEPA requires agencies to prepare an environmental impact statement (EIS) when the agency proposes a “major federal action” that could significantly impact the quality of the environment.[4] It is a key tool used by environmental groups and communities to require agencies consider the potential ecological consequences of their actions.
NEPA itself does not contain specific details of the standards required for environmental impact statements; those requirements were issued by CEQ in 1978, in response to President Carter’s Executive Order No. 11,991.[5] CEQ’s regulations detail when and how EIS and (the less comprehensive) Environmental Analysis (EA) must be issued.[6] They also outline several exceptions when an agency may refrain from doing so (called ‘exclusions’), such as when the prescribed action falls into a category of actions which “normally [does] not have a significant effect on the human environment, individually or in the aggregate.”[7] The regulations proclaim themselves “applicable to and binding on all Federal agencies”[8] for implementing NEPA and, although the power of CEQ to issue binding regulations has been an open question, courts and agencies have taken the rulemaking authority of that agency for granted since the regulations were promulgated in 1978.[9]
Marin Audubon v. Federal Aviation Administration
At issue in Marin Audubon was joint approval by the Federal Aviation Administration (FAA) and the National Parks Service (NPS), without the filing of an EIS or EA, of a plan which governed tourist flights over four national parks.[10] The agencies claimed their decision qualified as a categorical exclusion – and thus that there was no need to prepare an EIS or EA – because the plan would cause minimal or no additional environmental impact.[11] The petitioners challenged the use of the categorical exclusion and claimed the agencies had violated their obligations under NEPA.[12] Importantly, neither side argued that CEQ’s regulations were inappropriate, nor that the agency had transgressed their rulemaking authority.
Initially declining to address petitioner’s arguments at hand, the Court asserted its “independent power to identify and apply the proper construction of governing law,”[13] and held that “the CEQ regulations, which purport to govern how all federal agencies must comply with the National Environmental Policy Act, are ultra vires.”[14] The D.C. Circuit concluded that the regulations were invalid because there was no independent statutory source CEQ could trace its rulemaking authority from.[15] They explained that CEQ’s long standing claim – that its authority stemmed from the Executive Order of the President – violated the separation of powers doctrine because the Constitution does not permit the President to “seize for himself” the rulemaking powers of Congress.[16] The Court acknowledged that the Supreme Court has written that CEQ’s regulations were “entitled to substantial deference” and that they were “established by NEPA with authority to issue regulations interpreting it,” but explained that these statements lacked legal force because they appeared without any accompanying legal analysis.[17] Further, the Court concluded that the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo removed any need for the “Chevron-like” deference the Supreme Court had previously accorded the CEQ.[18] The Court did eventually address the arguments made in the case directly, and concluded that the decision not to perform an EIS or EA was arbitrary and capricious because the agencies improperly used the environmental impacts of existing flights as a baseline for their analysis.[19]
Takeaways and Potential Impacts
The Marin Audubon decision creates uncertainty around the future of NEPA. Although the D.C. Court’s authority is limited in scope and the ruling is subject to review by the Supreme Court, parties arguing against NEPA enforcement will operate from a stronger position with this precedent in hand. The decision demonstrates the tremendous potential of Loper Bright to overturn established precedent – in this case almost five decades’ worth. Without the weight of historical deference to counteract it, the conservative Supreme Court might uphold the decision if they agree that CEQ does not possess any authoritative rulemaking authority. This would undermine the effectiveness of NEPA by removing CEQ’s ability to set operating rules.
Without centralized guidance, agencies could be forced to create individual guidelines for enforcing NEPA provisions, which in turn could result in a patchwork of rules that vary by agency. Currently, many agencies (including the parent departments of the agencies in this case) have issued their own NEPA regulations, relying on CEQ’s model as a framework.[20] However, because of the technical nature of the regulations and because CEQ requires that agencies issue only “implementing procedures” that “comply with [CEQ’s] regulations,” many agencies’ plans contain only details specific to their programs.[21] If the Supreme Court were to invalidate CEQ’s regulations, it could force agencies to dramatically expand their own programs, and create conflicting requirements or standards in the process.
The influence of Marin Audubon and its impact on NEPA will also be shaped by the change in Presidential administrations. The Trump administration has placed a priority on deregulation and is overseeing a wide reshuffling of agency leadership. It could invalidate CEQ’s regulations directly by rescinding their rulemaking authority, regardless of whether such a rulemaking authority currently exists.
There are at least three potential counter arguments or actions that could be taken to oppose Marin Audubon.First, because the case was later decided on the merits, one can argue that the D.C. Circuit’s ultra vires analysis amounts to dicta and, therefore, is not entitled to the legal authority of a formal decision.[22] Second, if the decision stands, the D.C. Court and other courts could still allow the CEQ requirements to serve as guidelines rather than rulemaking, thereby preventing the need for agencies to adopt their own regulations from scratch. Third, Congress could act to amend NEPA to give CEQ rulemaking power directly.[23] Congress had resisted amending NEPA since its passage, preferring instead to adjust the CEQ regulations; however, NEPA was formally amended in 2020, and again in 2023, demonstrating an increasing momentum to do so.[24] Although this outcome is unlikely under a Republican controlled Congress, it would streamline the administrative process and avoid the potentially wide-reaching consequences of undercutting CEQ.
Marin Audubon Society represents a significant challenge to the traditional and future implementation of NEPA. Its development and the actions of the Trump administration deserve careful attention in the upcoming months as they will shape the implementation of NEPA in the years to come.
[1] Marin Audubon Soc’y v. Fed. Aviation Admin., et. al., 121 F.4th 902 (D.C. Cir. 2024).
[2] 42 U.S.C. §4331(a).
[3] 42 U.S.C. §4332(C).
[4] Id.
[5] Exec. Order No. 11,991, 3 C.F.R. 69 (1978).
[6] 40 C.F.R. §§1500-08 (2024).
[7] 40 C.F.R. §1501.4 (2024).
[8] 40 C.F.R. §1500.3 (2024).
[9] See Marin Audubon at 31-37 (Chief Justice Srinivasan dissent, and the discussion of the “party presentation principle”).
[10] Id. at 907.
[11] Id. at 908.
[12] Id. at 905.
[13] Id. at 909 (citing Kamen v. Kemper Fin. Serv., Inc., 500 U.S. 90, 99 (1991)).
[14] Id. at 908. Ultra vires is a term meaning acting beyond one’s legal power or authority.
[15] Id. at 912.
[16] Id. at 908 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588 (1952)).
[17] Id. at 913.
[18] Id.
[19] Id. at 915.
[20] Id. at 914.
[21] Id. (citing 40 C.F.R. §1507.3(a)-(b) (1978)).
[22] See Sarah Bordelon et al., Marin Audubon Should Not Upend the NEPA Process, Holland & Hart (Nov. 14, 2024), https://www.hollandhart.com/marin-audubon-should-not-upend-the-nepa-process.
[23] See Kristen Watt et al., D.C. Circuit Issues Ruling that Could Affect NEPA Compliance, Vorys (Nov. 20, 2024), https://www.vorys.com/publication-d-c-circuit-issues-ruling-that-could-affect-nepa-compliance.
[24] See Fiscal Responsibility Act of 2023, Pub. L. No. 118–5, 137 Stat. 38, Sec. 321 Builder Act (2023).