In Marin Audubon Society v. Federal Aviation Administration, the Washington D.C. Circuit Court of Appeals considered arguments regarding a challenge to an air tour management plan that would affect four national park areas in California. No. 23-1067, 2024 WL 4745044, at *1 (D.C. Cir. Nov. 12, 2024). The plan was developed by the Federal Aviation Administration and the National Park Service (“NPS”), and was challenged by the Audubon Society, other environmental advocacy groups, and one local resident.

The National Environmental Protection Act (“NEPA”) was enacted in 1970 to require government agencies to consider the effects of their proposed actions on the environment prior to carrying them out. NEPA provides a framework by which government agencies could issue permits for land use or approve actions related to the use of national resources. The statutory scheme established the President’s Council on Environmental Quality (“CEQ”), which issued regulations to enact the statute and describe how the other agencies should carry out NEPA’s mandates.

CEQ has interpreted NEPA to require that a government agency study the impact a proposed action will have on the environment before carrying out the action. The agency must then draft and issue an Environmental Impact Statement, to include the effects of the proposed action on the environment, unavoidable adverse impacts, and alternative actions or an Environmental Assessment, which is somewhat less stringent. Some agency actions are subject to categorical exemption.

The basis of the plaintiffs’ challenge to the Agencies’ plan was that the agencies did not fully consider the impacts of their plan according to the operation of NEPA. At present, there is no plan for flights over the parks in question. Instead, individual companies are operating flights over the parks by virtue of voluntary agreements, which are not subject to the requirements of NEPA, with the NPS. The Agencies considered the current average number of flights per year and paths of the flights over the parks and determined that the plan they developed would likely be beneficial for the environment. They reasoned it would displace the prior agreements, and the Agencies’ plan would require mitigating measures that the voluntary agreements did not.

Before reaching the Parties’ arguments, the Court held that the CEQ does not have authority to issue regulations binding other governmental agencies because a regulatory body must have a statutory grant of authority to enact binding regulations. NEPA did not contain a provision granting the CEQ authority to enact regulations necessary to implement the statute, and for the first seven years of its existence, the CEQ issued guidance to other federal agencies. In 1977, President Carter granted the body regulatory authority by executive order. The Court held CEQ’s ensuing regulations are ultra vires, or outside the law.

The Court reasoned this was a violation of the separation of powers, citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588 (1952), and related cases. The Court held the President’s executive order could not on its own bestow regulatory authority, and so the CEQ could not bind other agencies with its rules. Moreover, the other Agencies in question derive their powers from statute. Allowing an executive decree to usurp legislative grants of authority offends the separation of powers principle.

Commentors see this ruling and opinion as a potential effect of, and in much the same vein as, Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), the recent Supreme Court case eliminating Chevron deference to government agencies in interpreting the statutes creating them and granting them authority. Some also say this decision could create an air of uncertainty that may make government actions and permitting processes less streamlined and less efficient.