CAGING THE TIGER: THE D.C. CIRCUIT COURT OF APPEALS DISMANTLES LONGSTANDING ENVIRONMENTAL REGULATIONS UNDER NEPA

Written by Kenya Rothstein¹

INTRODUCTION

For the last five decades the Council of Environmental Quality (CEQ) has issued regulations to implement the National Environmental Policy Act (NEPA), 42 U.S.C. sections 4321 et seq. However, limiting CEQ’s authority has been at the forefront of recent judicial and executive actions. In a case that surprised many longtime NEPA practitioners, Marin Audubon Society v. Federal Aviation Administration,² the United States Court of Appeals for the District of Columbia Circuit found that CEQ does not have authority to issue regulations to implement NEPA. Notably, The Marin Audubon Society decision came out November 12, 2024—right after the election of President Donald Trump on November 5, 2024. Shortly thereafter, the Trump Administration initiated changes, which complement the D.C. Circuit Court of Appeal’s discussion about CEQ’s authority, specifically President’s Executive Order (EO) 14154.³ Section five (5) of the EO revokes CEQ’s authority to issue binding regulations and directed CEQ to: (1) issue new guidance for implementing NEPA; and (2) propose rescinding all CEQ’s NEPA regulations found at 40 C.F.R. sections 1500 et seq. These changes to CEQ’s authority has created major uncertainties for environmental law practitioners and their clients.

AN ENVIRONMENTAL CHALLENGE TO A FEDERAL FLIGHT PLAN LEADS TO THE DEMISE OF CEQ AUTHORITY TO ISSUE REGULATIONS.