Future Uncertain For National Environmental Policy Act Implementation

Ever since the U.S. Court of Appeals for the D.C. Circuit declared in Marin Audubon that the Council on Environmental Quality (CEQ) had no authority to issue binding National Environmental Policy Act (NEPA) regulations, questions have swirled about the future of NEPA implementation. Since Marin Audubon was decided on November 12, 2024, several significant actions have been taken. Here, we summarize some key NEPA-related developments over the past 90 days, including a potential interim final rule by CEQ rescinding its own NEPA regulations.

En Banc Review of Marin Audubon Denied

In Marin Audubon, parties challenged the failure of the Federal Aviation Administration and National Park Service to conduct NEPA reviews of plans to update approvals for tourist flights over several national parks in California. The agencies used an improper interpretation of the applicable environmental baseline. A split panel of the D.C. Circuit held that NEPA does not grant CEQ