A federal appeals court determined that the White House does not have the authority to issue binding environmental regulations under the National Environmental Policy Act (NEPA), upending several decades of the practice.
NEPA is a federal law that requires federal agencies to conduct a review of environmental impacts before making any decisions and then issue a “detailed statement” of the environmental review.
In a divided decision Tuesday, the D.C. District Court of Appeals ruled that the White House Council on Environmental Quality (CEQ), established to instruct agencies on NEPA compliance, does not have the power to issue regulations on other federal agencies as it has been for more than 40 years.
Then-President Carter signed an executive order in 1977 allowing CEQ to begin issuing “regulations” rather than “guidelines” to federal agencies. However, the federal court challenged Carter’s executive order by ruling that CEQ is not granted authority under NEPA to issue binding regulations.
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The decision stemmed from the Marin Audubon Society v. Federal Aviation Administration case, which challenged the Federal Aviation Administration’s compliance with NEPA after the agency allowed tourist flights over national parks without environmental review.
However, the CEQ’s role in the environmental regulation process is what stole the court’s attention.
“Here, CEQ’s authority to issue regulations on the basis of an Executive Order raises what is essentially a “separation of powers” issue,” the ruling reads.
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“The separation of powers and statutory interpretation issue that CEQ’s regulations present is thus unremarkable,” the court continued. “What is quite remarkable is that this issue has remained largely undetected and undecided for so many years in so many cases.”
The court ruled that “the Constitution does not permit the President to seize for himself the ‘law-making power of Congress’ by issuing an order that, ’like a statute, authorizes a government official to promulgate rules and regulations.”
The CEQ has carried out major rules over the years, such as ensuring that agencies consider climate change when conducting environmental analysis and integrating “environmental justice” into federal administrative law.
However, the new ruling suggests that CEQ has not had the authority all these years to implement any regulations.
It could face appeal and a final decision by the entire D.C. Circuit bench.
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