On Nov. 12, a federal court of appeals issued a major decision in the Marin Audubon Society v. Federal Aviation Administration case concerning the validity of National Environmental Policy Act regulations governing federal environmental reviews. The ruling will potentially have wide-ranging implications for federal permitting actions subject to NEPA reviews.

In the decision, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that NEPA’s enacting legislation did not grant rulemaking authority to the White House’s Council on Environmental Quality and therefore CEQ cannot issue binding regulations directing how federal agencies conduct NEPA reviews.

CEQ’s regulations have provided the framework for NEPA reviews since 1978, with changes implemented across various presidential administrations. Most recently, ABC opposed a May 2024 CEQ final rule to impose unnecessarily burdensome new requirements on NEPA reviews.

The implications of this decision are highly uncertain at this time. Significant impacts to NEPA reviews are possible, including the potential for varying procedures across different federal agencies, elimination of categorical exclusions allowing agencies to streamline NEPA reviews and further litigation to vacate agency actions based on CEQ regulations.

Currently, the decision only applies to the D.C. Circuit’s jurisdiction and does not explicitly vacate any specific CEQ regulations. NEPA reviews are likely to proceed as normal in the immediate future. It is unknown if the decision will be appealed.

 ABC will continue to monitor the situation and provide updates as federal agencies potentially issue new rulemakings and guidance as a result of the decision.