November 26, 2024
An Unprompted D.C. Circuit Holds that CEQ Lacks Authority to Issue NEPA Regulations
In a November 12, 2024, opinion, for Marin Audubon Society v. Federal Aviation Administration, No. 23-1067 (D.C. Cir. 2024), the D.C. Circuit Court of Appeals held, of its own initiative, that the White House Council on Environmental Quality (CEQ) lacks the authority to issue binding regulations implementing the National Environmental Policy Act (NEPA).
CEQ, established in 1969 within the Executive Office of the President as a part of NEPA (see 42 U.S.C. § 4321 et seq.), issued the first set of NEPA Implementing Regulations in 1978 upon direction by executive order (see 40 C.F.R § 1500 et seq.). NEPA Regulations expound on the statute and serve as the basis for agency-and-department-specific NEPA guidelines. For many decades, federal courts at all levels have consistently based rulings on agency use and court interpretation of the Regulations.
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Written by Casey A. Shorrock