Parties Seek Rehearing in Marin Audubon v. Federal Aviation Administration
In a sign of the times, both petitioners and respondents filed petitions for rehearing en banc of the recent decision of a split panel of the United States Court of Appeals for the D.C. Circuit that held that the Council on Environmental Quality’s (CEQ) regulations implementing the National Environmental Policy Act (NEPA) are unlawful. Nossaman reported on the initial panel decision challenging a plan adopted by the Federal Aviation Administration (FAA) and the National Park Service (NPS) pursuant to the National Parks Air Tour management Act of 2000 that regulates tourist flights over four national parks near San Francisco, California.
At issue in the case is the lawfulness of the approach taken by FAA and NPS to complying with NEPA. The agencies decided to rely on a categorical exclusion to comply with NEPA rather than prepare an environmental assessment or environmental impact statement. Neither petitioners nor respondents challenged the validity of the CEQ regulations, which have been in place since 1978. Nonetheless, noting the Court has independent authority to “identify and apply the proper construction of governing law,” the panel majority held that neither NEPA nor any other federal statute authorizes CEQ to promulgate NEPA regulations.
The environmental petitioners filed a petition on November 27, and the federal respondents filed a petition on December 5. In seeking review, both relied on the party-presentation principle raised by the dissenting panel member, Chief Judge Srinivasan, as the basis for reversing the panel decision. The principle is that reviewing courts rely on the parties to frame the issues for decision rather than taking initiative themselves to frame the issues. Both also emphasized the decision will have “stark consequences” catapulting implementation of NEPA into a state of “disarray.”
If the petitions are granted, the panel decision will be reviewed by the full D.C. Circuit. Under Federal Rule of Appellate Procedure 40, the Court may, in its discretion, order additional briefing and/or argument or decide the case without either. In the event argument is scheduled, it is likely that it will occur after the transition to the Trump administration, and it is foreseeable that the position of the federal respondents may differ.
Irrespective of how the case is resolved, it is likely that NEPA and the CEQ regulations will be a continuing focus of stakeholders across all three branches of government. For example, the Supreme Court will be hearing argument on December 10 in Seven County Infrastructure Coalition v. Eagle County, Colorado, a case likely to address whether an agency engaged in environmental review under NEPA is required to analyze environmental impacts that are beyond the regulatory authority of the agency to control.
In addition, the House Committee on Natural Resources and its Chair, Congressman Westerman, are exploring efforts to streamline the environmental review process under NEPA. On September 11, 2024, the Committee held a legislative hearing on three bills related to NEPA. In 2025, when the Republican Party takes control of the White House and Congress, efforts to overhaul NEPA may intensify consistent with the Project 2025 Policy Agenda, calling for “sweeping modernization of the entire permitting system.”
Furthermore, it is widely anticipated that – irrespective of the outcome of the Marin Audubon case – the incoming Trump administration will seek to revise or repeal Biden administration revisions to the existing CEQ NEPA regulations. The Biden administration revisions are already the subject of a legal challenge brought by Attorneys General from Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming in the United States District Court for the District of North Dakota. And on the heels of the Marin Audubon decision, the states challenging the Biden CEQ NEPA regulations filed the decision as a supplemental authority. Thus, even if the D.C. Circuit sitting en banc reversed the panel decision and the case was not then taken up by the Supreme Court, the panel decision would have lasting effects to the extent it influences these other policy-making arenas.
