On November 19^th, the National Agricultural Law Center (NALC) posted an article by Brigit Rollins Staff Attorney, analyzing a recent circuit court ruling that the Council on Environmental Quality, an agency created by the National Environmental Policy Act (NEPA), was provided no regulatory authority by Congress. As Ms. Rollins in her closing summary noted, “…the ruling is likely to cause delays for any activity currently undergoing NEPA review as federal agencies determine how to proceed.” The article can be accessed by clicking here.

In brief…

In a ruling issued earlier this month, a three-judge panel on the D.C. Circuit Court of Appeals found that the Council on Environmental Quality (CEQ) lacks authority to issue binding regulations. CEQ was created in 1969 as part of the National Environmental Policy Act (NEPA), which is considered the first major environmental statue in the United States.

NEPA requires all federal agencies to undergo an environmental review process before taking certain agency actions. The text of NEPA specifies that CEQ shall advise the President on environmental matters and ensure that federal agencies comply with NEPA. However, NEPA does not specifically state that CEQ has authority to issue regulations. Instead, CEQ traces its rulemaking authority to two Presidential Executive Orders. According to the D.C. Circuit, only Congress can grant federal agencies the power to issue binding regulations.

The lawsuit before the D.C. Circuit focused on whether federal agencies had violated NEPA by failing to complete environmental review before approving a plan to authorize air tours for four national parks. None of the parties raised any arguments related to CEQ’s rulemaking authority.