In a decision that stunned lawyers across the country, a federal appeals court slashed rules creating much of the environmental directives around power lines, highways, air traffic and infrastructure projects.
In a 2-1 decision, two Republican-appointed judges of the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Council on Environmental Quality — an agency managed by the White House and responsible for most environmental permitting rules — does not have, and never had, the authority to create legally binding regulations for federal agencies.
Environmental attorneys were unprepared for the decision because neither party in the case at hand — which was a dispute between environmental groups and federal agencies over air traffic permitting — made any argument questioning CEQ’s authority. The judges ultimately analyzed and then tossed that authority without being asked.
“Every environmental lawyer in the nation is now writing this into a client alert,” said Sean Marotta, an administrative and appeals attorney at Hogan Lovells. “It’s like it dropped from the sky.”
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Since the 1970s, the CEQ, which was formed during the Nixon administration, has issued countless rules for the National Environmental Policy Act, and federal agencies and the courts have treated those rules as legally binding.
Judge A. Raymond Randolph, writing for the majority, said they never were.
“No statutory language states or suggests that Congress empowered CEQ to issue rules binding on other Agencies,” Randolph wrote. “What is quite remarkable is that this issue has remained largely undetected and undecided for so many years in so many cases.”
If Tuesday’s ruling stands, it’s likely that many of the rules that currently govern federal environmental permitting would disappear or become mired in confusion, experts said.
NEPA has slowed huge infrastructure projects for decades, and, in recent years, clean energy groups have called it a burden for the projects and transmission infrastructure at the heart of the Biden administration’s climate policies. The White House and Congress have even used CEQ to create “categorical exclusions” to free some clean energy projects from regulatory requirements — decisions that ironically may be called into question with this ruling.
NEPA reform advocates immediately cheered the decision.
“NEPA is a five page law. CEQ regulation and case law have turned that five page law into a review process that takes hundreds of pages and years to complete. Getting rid of CEQ regulations, then, could change NEPA significantly and create a huge opportunity for the incoming administration,” said Thomas Hochman, a policy manager at the Foundation for American Innovation.
James Coleman, a law professor at the University of Minnesota, and several other administrative law attorneys wrote an amicus brief to the Supreme Court actually calling for the high court to do what the circuit court did unprompted.
“It really changes every case going through the courts,” Coleman said. “We asked them to reach this decision, basically the same decision that the D.C. Circuit reaches here. We asked them to say that CEQ does not have the authority,” he said. “But it’s very shocking because people have been operating as if the CEQ had the authority to do this for fifty years, and the court has finally said no, they don’t.”
The ruling puts the environmental groups who brought forward the case in a difficult position. Technically, they’ve won their suit, but the court’s much more far-reaching opinion guts regulations that environmental groups support and regularly defend in court.
The Biden administration could challenge the decision, though that is unlikely in a lame duck administration. The D.C. Circuit could voluntarily choose to review the ruling with every judge on the court participating, in a process called en banc.
“If they were to take up the case, I think what they would say is, ‘You shouldn’t have reached this. Why are we doing this?’” Marotta said, emphasizing that it is very unusual for judges to make a decision about an issue that wasn’t argued in the first place.
Coleman doubted that would happen, though. The dissenting judge didn’t challenge the details of the decision itself, and the three-judge panel in the D.C. Circuit is often taken seriously, he said.
“If the Fifth Circuit did this, you’d be like, ‘Oh, well, the Fifth Circuit’s doing what the Fifth Circuit does, right? But to have the D.C. Circuit, who is generally viewed as leaning a little bit liberal on environmental issues, come out with this holding — it is a big shock wave,” Marotta said.
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Anna Kramer is a reporter at NOTUS.
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