Illustration: Tiffany Herring/Axios
Federal courts are taking aim at the National Environmental Policy Act, as lawmakers struggle with how to overhaul one of the nation's bedrock environmental laws.
Why it matters: A November decision effectively vacating CEQ's authority to implement NEPA sent shock waves through the legal world and could affect the way Congress and the incoming administration think about permitting.
- "It's a bombshell," Rep. Jared Huffman told Nick.
Driving the news: The D.C. Circuit ruled that the Council on Environmental Quality lacks the power to issue binding NEPA regulations — for decades one of the agency's central roles.
- CEQ's regulatory role comes not from statute, but rather a 1977 executive order.
- The decision in Marin Audubon Society v. FAA could prompt Congress to explicitly grant it that authority to simplify regulation across government as part of a broader overhaul of the law.
Zoom in: Parties in other NEPA-related lawsuits are already bringing it up in their own cases.
- Experts say the decision will have ramifications for the Trump administration's pledges to roll back Biden-era NEPA rules.
- Judges in the case "really kind of have gutted the role of CEQ," Rep. Garret Graves —who helped write the recent changes to the law — told Nick.
- "Having an overarching entity that can look at that entire regulatory agenda … especially with this being a priority for President Trump, I think that's something that's really important."
Rep. Bruce Westerman, architect of the current NEPA overhaul floating around the Hill, said he's still trying to "understand the ramifications" of the decision.
- But he added, "It appears that the district courts are trying to align themselves" with the Supreme Court's takedown of Chevron deference.
Between the lines: The court may revisit this decision, so the exact implications are in flux.
- "Whether the D.C. Circuit opinion stands, or whether it has durability in that way, I think other parties around the country are definitely going to pick up the mantle of the majority ruling in Marin and try it," said Fred Wagner, a partner at Venable LLP.
What's next: The Supreme Court hears oral arguments on yet another NEPA case, Seven County Infrastructure Coalition v. Eagle County, on Dec. 10.
- It centers on whether the environmental analysis for a proposed rail line to carry crude oil in Utah should have to account for possible impacts of increased oil and gas drilling and refining activity elsewhere.
- It's a potential landmark for the conservative court that could limit NEPA's scope, beyond debates about the implementing regs.
The big picture: The landscape for NEPA has changed drastically since the Trump administration overhauled the implementing rules in 2020 for the first time in decades.
- That's made for some uncertainty for companies seeking NEPA permits, even with Congress making bipartisan moves aimed at cutting down paperwork.
- "The last five years, we've seen more change around this area of law than over the last five decades," said Jason Hill, a partner at Holland & Knight.
