Eco-Activists May Have Inadvertently Gutted One of Their Favorite Regulatory Systems

DAILY CALLER NEWS FOUNDATION—Eco-activists sued the federal government to stop activity they didn’t like, but a bombshell Tuesday ruling in that case from a federal appeals court may end up weakening a regulatory system that has served environmentalists well for years.

The U.S. Court of Appeals for the D.C. Circuit ruled in Marin Audubon Society v. Federal Aviation Authority (FAA) that the White House Council on Environmental Quality (CEQ) does not have the legal authority to issue National Environmental Policy Act (NEPA) rules.

Environmentalists have used NEPA as an avenue of legal attack against disfavored infrastructure projects—particularly oil- and gas-related developments—for years, with long delays pushing back timelines and driving up costs for builders even when the challenges themselves fail, according to analysis conducted by the Breakthrough Institute.

Then-President Richard Nixon signed NEPA into law in 1970, and it has stood as a linchpin of the environmental regulatory regime ever since. The ruling essentially signals to CEQ that “the rulemaking authority [the] agency has been relying on for almost 50 years does not exist,” according to the Yale Journal on Regulation, though the three-judge panel that issued the ruling may still be overruled by the Supreme Court or on appeal, according to Mike Catanzaro, who served as the associate policy director for the Bush White House CEQ.

“This case quite definitively has called out a fundamental, and to some, unfortunate, fact about NEPA: in many respects, it is an administratively, and unlawfully, created juggernaut, large parts of which Congress never authorized,” Catanzaro told the Daily Caller News Foundation. “Nonetheless, while welcome, the decision raises important and potentially problematic procedural questions, which could lead the full D.C. Circuit to reconsider, and even overturn, the three-judge panel’s correct conclusion on the merits.”

“Moreover, this decision applies in just one circuit court, meaning judges in other such courts could reach a very different substantive legal conclusion,” Catanzaro continued. “On top of this, the Supreme Court is currently considering its first NEPA case in 20 years—a case rooted in the very regulations that the DC Circuit chose to invalidate. In the end, the Supreme Court may very well have the last word.”

While it is not entirely clear how Tuesday’s decision will specifically affect the permitting process if it withstands further review and appeal, the ruling effectively turns the existing paradigm on its head just months after the Supreme Court in June ruled in a way that massively reduce agencies’ ability to interpret laws for themselves. Particularly given President-elect Donald Trump’s promise to slash regulations in his second term, the D.C. Circuit’s ruling “could provide a path toward a significant shift in how federal agencies implement NEPA and what NEPA review looks like in the years to come,” according to Morgan Lewis, a Washington, D.C., law firm.

Among other policies, Trump has pledged to rescind the Biden-Harris administration’s de facto electric vehicle mandate and its major power plant rules.

Steve Milloy, a senior fellow at the Energy and Environment Legal Institute, applauded the ruling, saying that it represents a major step toward placing rulemaking authority back in Congress’ hands.

“What’s not to like? The executive branch can’t issue regulations without congressional authorization. That is Constitutional Law 101,” Milloy told the DCNF. “NEPA has to be fixed by Congress. It can’t be done through CEQ, which is not authorized to do so.”

The Competitive Enterprise Institute (CEI), a pro-free market think tank, also commended the D.C. Circuit for its decision.

“The court recognized that nowhere in the National Environmental Policy Act is the Council on Environmental Quality authorized to prescribe the content of environmental impact statements, as it has been doing since 1978,” CEI attorney David McFadden said in a statement. “CEI argued that very position in an amicus brief it submitted to the U.S. Supreme Court in the pending case of Seven County Infrastructure Coalition v. Eagle County, Colorado. It is our hope that the Supreme Court as well as the judiciary and agencies of the United States will increasingly understand that power is granted by law and not acquired by prescriptive right.”

The White House did not respond immediately to a request for comment.

Originally published by the Daily Caller News Foundation.

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