The National Environmental Policy Act of 1969 (NEPA) requires federal agencies, including the Nuclear Regulatory Commission (NRC), to evaluate the potential environmental impacts of their proposed actions. That statute also established the White House Council on Environmental Quality (CEQ), which was tasked with issuing NEPA implementation guidelines.
Pursuant to a 1977 executive order, CEQ promulgated implementing regulations that executive branch agencies have followed for many decades. On November 12, 2024, in Marin Audubon Society v. Federal Aviation Administration, a divided three-judge panel of the US Court of Appeals for the District of Columbia Circuit issued a stunning ruling, holding that the CEQ lacks the statutory authority to issue binding regulations. The discussion below explores potential impacts from the DC Circuit’s ruling on NRC environmental reviews.
The Decision
Marin Audubon Society stems from a challenge to an Air Tour Management Plan (Plan), which governs tourist flights over four national parks near San Francisco, California, that was developed by the Federal Aviation Administration and the National Park Service (together, the Agencies). The Agencies did not complete an environmental assessment or environmental impact statement under NEPA because they determined the Plan would ultimately benefit the environment because of its included mitigation measures.
Petitioners challenged the Plan, arguing the Agencies did not comply with the CEQ’s NEPA regulations by failing to complete an analysis of environmental impacts. Neither party challenged the validity of CEQ’s rules or its ability to promulgate binding federal regulations. Nevertheless, the majority held, sua sponte, that because no statute states or suggests that US Congress has empowered the CEQ to issue rules binding on other agencies, the CEQ has no lawful authority to promulgate such regulations. Other federal courts have repeatedly held or implicitly acknowledged the binding nature of CEQ regulations, so the DC Circuit’s ruling comes as a surprise, as it upends decades of administrative practice.
NRC Impact
Although the decision is likely to be disruptive to executive branch agencies, we expect it will have little impact on independent agencies, such as the NRC. The NRC has long held that the CEQ’s NEPA-implementing regulations do not bind it. Instead, in the 1984 Final Rule establishing NRC-specific NEPA regulations, codified in 10 CFR Part 51, the NRC clarified that it “is not bound by those portions of CEQ’s NEPA regulations which have a substantive impact on how the Commission performs its regulatory functions.” In fact, Part 51 references the NRC’s policy to voluntarily “take account” of CEQ’s regulations, and notes that those regulations are only binding to the extent NRC codifies CEQ requirements in its own Part 51 regulations. In Marin Audubon Society, the court appeared to have no concerns about the binding nature of CEQ regulations that federal agencies expressly incorporate into their own NEPA regulations through a further rulemaking process.
Looking Ahead
On November 27, 2024, the Petitioners filed with the DC Circuit a Petition for Panel Rehearing or Rehearing En Banc. Relying heavily on the dissent, Petitioners argue that the ruling “kicks the foundation out from under a statute that agencies across the federal government implement on a daily basis,” and that it does so in violation of the “principle of party presentation,” under which courts “normally decide only questions presented by the parties.” If the DC Circuit grants rehearing, it is unclear whether it would issue a revised ruling that reaches the same substantive result in the case without invalidating CEQ regulations. Even if so, the question of CEQ’s authority to issue binding regulations is unlikely to simply fade away; a litigant in some future case could embrace the majority’s original reasoning and present a head-on challenge.
How We Can Help
Our team is closely monitoring updates following the court’s decision and stands ready to assist with any questions on this matter or its impact on other agencies and subject areas.