In 2000, on behalf of helicopter pilots, some of whom flew combat missions during the Vietnam War, and others, I sued the National Park Service (NPS) and the Federal Aviation Administration (FAA) for regulations that restricted their recreational tours over Grand Canyon National Park (GCNP) in Arizona.
In 1987, Congress mandated that the NPS restore “natural quiet” over the Grand Canyon; however, President Bill Clinton’s NPS, under the leadership of Secretary of the Interior Bruce Babbitt, planned to end those tours altogether. That was Babbitt’s intent, despite that: (1) GCNP is huge (1.2 million acres — the size of Delaware, 277 miles long and 18 miles wide), (2) the air tours overflew a tiny and outlying portion of the park, far from the South Rim where most of the 4.5 million annual visitors experience GCNP, and (3) “natural quiet” in GCNP had long since been achieved.
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Using tainted data and “junk science,” the agencies adopted regulations that were economically devastating to my small business clients; in fact, the agencies recognized just how destructive they were when the agencies declared the rules would not apply to a local American Indian tribe that conducted air tours. (The Supreme Court of the United States declined to hear a subsequent challenge to that race-based decision filed by a Vietnam War veteran pilot: “When we got a call that Americans were down, we didn’t ask their race; we went to get them out.”)
Unfortunately, at the U.S. Court of Appeals for the District of Columbia, Justice Merrick Garland, for the three-judge panel, applied the Supreme Court’s 1984 Chevron ruling, (overturned by the Supreme Court last term) and, as a result, deferred to and upheld the regulations issued by the NPS and FAA. My clients were out of court and forced to battle, for decades, in drawn-out negotiations with federal agencies and environmental groups, which had joined our lawsuit to demand more Draconian regulations over how they could stay in business.
If all this — the U.S. Court of Appeals for the District of Columbia, the NPS, the FAA, flights over national parks, environmental regulations, and Attorney General Merrick Garland — sounds familiar, it should. Indeed, those are elements of a landmark ruling issued days ago by what is often called the second most powerful federal court in the country. At issue were Congress’s more recent legislation on the issue of flights over national parks, four national parks near San Francisco, and regulations issued under the National Environmental Policy Act of 1969 (NEPA). Ruling 2-1, the appeals court, after resolving some issues raised by the parties, ruled on an issue presented by none of them and, in doing so, overturned forty-six years of NEPA rulemaking. Held the majority, federal regulations that “purport to govern how all federal agencies must comply with [NEPA] are ultra vires” (“beyond the powers”).
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NEPA, signed into law by President Richard Nixon, requires federal agencies to prepare “a detailed statement” of the environmental impacts of any “major Federal actions significantly affecting the quality of the human environment.” The workshop equivalent of “measure twice; cut once,” Congress envisioned “statements” not the unreadable tomes produced by federal agencies today in the futile hope of preventing a federal judge, in lawsuits filed by well-funded non-governmental organizations (NGOs), from delaying, downscaling, or dooming a federal action. Because the test for the adequacy of an “environmental impact statement” (EIS) is whether the agency took a “hard look,” federal judges have enormous latitude in approving actions they favor or killing those they oppose. Little wonder that NEPA is the largest single bottleneck to taking “major Federal actions” to develop energy, spur the economy, or create jobs.
NEPA also created a Council of Environmental Quality (CEQ) in the Executive Office of the President, which is manned by three Commissioners appointed by the President and confirmed by the U.S. Senate. CEQ was to “review and appraise” how agencies complied with NEPA, “make recommendations to the President” in that regard, and “develop and recommend to the President national policies to foster and promote the improvement of environmental quality.” In 1970, Nixon’s Executive Order instructed CEQ to set “guidelines” for agencies to comply with NEPA; a year later, CEQ issued a “memorandum” with “guidelines” on preparing NEPA documents.
In 1977, President Jimmy Carter, beholden to environmental groups for his election, took office and, in the words of one legal scholar, embarked upon “the most ambitious presidential foray [into environmental issues]: the transformation of the CEQ from an advisory entity into a regulatory agency.” Carter’s Executive Order decreed that CEQ promulgate not “guidelines,” but “regulations,” which were binding on all federal departments and agencies, federal courts, and “non-federal litigants in NEPA cases.” As for federal departments and agencies, their sole remaining authority was to “issue implementing procedures” to comply with CEQ’s directives. Thus, with the stroke of his pen, Carter changed CEQ from advisory to supervisory. As authority for the ninety-two NEPA mandatory regulations CEQ subsequently issued in 1978, “many with numerous subparts containing extensive detailed and intricate explanations and directives,” CEQ cited Carter’s Executive Order and “the President’s constitutional and statutory authority.”
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More than four decades later, the regulatory framework created by CEQ is still in effect. Nonetheless, wondered the Court of Appeals, under what authority did CEQ issue regulations?
Because “[n]o statute confers rulemaking authority on CEQ,” and an agency “literally has no power to act” other than pursuant to the power granted it by Congress, the Constitution’s Separation of Powers Doctrine is implicated. After all, it is well established, at least since 1952, that, under the Constitution, a President may not usurp the “law-making power of Congress” by executing an order that, “like a statute, authorizes a government official to promulgate … rules and regulations.” That is the case even when, as perhaps here, Congress and the Executive’s CEQ, “are adjusting their own powers between themselves,” because the Doctrine exists, not to preserve a branch’s prerogatives, but to protect individual liberty. Remember, CEQ’s regulations bound not just federal departments and agencies, but also Americans affected adversely by NEPA decision-making.
The divided court concluded, “No statute confers rulemaking authority on CEQ.” As to the Supreme Court’s occasional, over the decades, implicit recognition of CEQ’s authority to issue NEPA regulations, it was either the result of now impermissible Chevron deference or a “stray remark on an issue the parties neither raised nor discussed in any meaningful way.” In short, the Supreme Court never addressed whether CEQ had lawful authority to promulgate its 1978 regulations. The Court may soon have that opportunity given the appeals court’s decision earlier this month, after potential review by the full appellate court sitting en banc.
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Meanwhile, the incoming Trump administration could be unshackled, not only from CEQ’s decades-old NEPA regulatory framework but also from the Biden-Harris expansion of NEPA: to address “climate change,” which includes quantification of green-house gases and consideration of impacts on foreign countries, to consider “environmental justice,” which the Biden-Harris CEQ calls an “extraordinary circumstance[],” and to “put[] renewable energy projects on a separate, expedited track.” Most likely, Elon Musk and Vivek Ramaswamy and lawyers at the Department of Government Efficiency (“DOGE”) will be reviewing the ruling.
I wish I had been far-sighted enough twenty-four years ago to question the source of CEQ’s authority to issue binding NEPA regulations. Admittedly, I did not envision a time when Chevron deference would be overturned, federal judges would question the indifferent way “the two political branches are adjusting their own powers between themselves,” or a Supreme Court would more faithfully embrace the vision of the Founding Fathers. That time has arrived.
William Perry Pendley, a Wyoming attorney and Colorado-based, public-interest lawyer for three decades with victories at the Supreme Court of the United States, served in the Reagan administration and led the Bureau of Land Management for President Donald Trump.