A recent ruling from the DC Court of Appeals found that the National Environmental Policy Act (NEPA) does not grant the authority to pass binding regulations. As a result, decades of regulations are now thrown up in the air, since rulings made under NEPA have been treated as legally binding up to this point. This could result in substantially more litigation, and could set up a fight in the Supreme Court that may result in further limits to the power of administrative agencies like the EPA.
What is NEPA?
NEPA is a law originally passed in 1970, which established rules about studying the environmental impact of government activities. In order to carry out these studies, it established something known as the Council on Environmental Quality (CEQ), which published reports on the foreseeable environmental consequences of government actions. The results of these reports were typically treated as binding law, similarly to other regulations passed by other administrative agencies.
What Was This Lawsuit About?
In the lawsuit Marin Audubon Society v. FAA, the plaintiff sued multiple government agencies over a plan that regulated how tourist flights could fly over national parks. As part of this lawsuit, the defendant agencies argued that no additional analysis was needed for the plan because it did not substantially deviate from existing flight plans. The plaintiffs said that this violated NEPA, which requires a “detailed environmental analysis” from CEQ on any substantial government action.
What is the Result of This Case?
In a shocking outcome, the DC Court of Appeals ruled that NEPA itself had no binding regulatory authority. As a result, the kinds of environmental studies performed by CEQ are not mandated, and carry no binding legal weight. This means that not only is the plan in question no longer legally relevant, it also means that every regulation ever put forward by CEQ under NEPA is now potentially unenforceable.
What Happens Now?
Notably, this was not an outcome that either side argued for, but instead a ruling the court made seemingly of its own accord. This has left lawyers with more questions than answers, including whether the court had the authority to make this judgment in the first place. In all likelihood, it also means a significant contest in the Supreme Court, as both sides struggle to figure out what this ruling means in the long term.
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