Originally published in the March 2025 issue of Bench & Bar of Minnesota Environmental Law Update, Minnesota State Bar Association.
In Marin Audubon Society v. Federal Aviation Administration, 121 F.4th 902 (D.D.C, Nov. 12, 2024), a split panel of the U.S. Court of Appeals for the D.C. Circuit addressed a dispute over an Air Tour Management Plan (the Plan) developed by the Federal Aviation Administration (FAA) and the National Park Service (NPS) which governs commercial tourist flights over four national parks near San Francisco, California. The Marin Audubon Society and other environmental groups (Petitioners) challenged the Plan, arguing that the agencies failed to comply with regulations of the Council on Environmental Quality (CEQ) implementing NEPA; specifically, Petitioners claimed the agencies improperly applied a “categorical exclusion” to conclude that no environmental review under NEPA was required for the Plan.
CEQ regulations direct federal agencies to “establish categorical exclusions for categories of actions that normally do not have a significant effect on the human environment” and are therefore exempt from environmental review under NEPA. 40 C.F.R. § 1501.4(a). Pursuant to this regulation, the NPS has adopted various categorical exemptions, including one for “[c]hanges or amendments to an approved action when such changes would cause no or only minimal environmental impact.” NPS NEPA Handbook § 3.3(A)(1). Here, the FAA and NPS determined that the Plan would be environmentally beneficial compared to the existing plan; accordingly, they determined the Plan fell within the NPC categorical exclusion for projects with no environmental impact and could be issued without an environmental assessment or impact statement.
Unexpectedly, the court declined to review the parties’ arguments on whether the agencies complied with the CEQ NEPA regulations. Instead, the court offered an extended analysis of the validity of the underlying CEQ regulations. The court traced the CEQ’s purported authority to issue binding regulations under NEPA to a longstanding executive order from then President Jimmy Carter, Executive Order 11514 of Mar. 5, 1970, as amended by Executive Order 11991 of May 24, 1977. Section 202 of NEPA created the CEQ in the executive office to, among other things, advise the president on implementing NEPA and to consult with federal agencies as they develop procedures to implement NEPA. Notably, whereas NEPA does not authorize the CEQ to adopt regulations, President Carter’s executive order does: it directs CEQ to “[i]ssue regulations to Federal agencies for the implementation of the procedural provisions of the Act” and directs federal agencies to “comply with the regulations issued by the Council.” These directives led to what the court described as “a massive new body of law” applicable throughout the federal government. However, the court held that an executive order cannot substitute for Congressional authority. Because CEQ “had no lawful authority to promulgate” its nearly 50-year-old regulations, the court held they are ultra vires and thus invalid, and that as a result the FAA and NPS’s reliance on the categorical exclusion was arbitrary and capricious. Both petitioners and respondents filed petitions for rehearing en banc of the panel’s decision.
The court’s ruling reflects and foreshadows increased scrutiny of federal agencies’ environmental reviews under the second Trump administration. Indeed, following the court’s decision, President Trump took steps to cement CEQ’s lack of rulemaking authority by issuing Executive Order 14154 of Jan. 20, 2025, the Unleashing American Energy directive, which among other decisions, revoked President Carter’s Executive Order 11514. And on February 25, 2025, the CEQ published an interim final rule removing the CEQ’s regulations implementing NEPA from the Code of Federal Regulations. 90 Fed. Reg. 10610 (2-25-2025). These actions destabilize over four decades of NEPA practices, challenging foundational frameworks that federal agencies rely on for environmental review under NEPA. Moreover, the impact extends beyond the federal government because many state and local jurisdictions have implemented “mini-NEPA” laws, such as Minnesota’s Environmental Policy Act, Minn. Stat. ch. 116D, and frequently rely the CEQ NEPA regulations and interpretations in implementing their own laws.
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