Lisa Gilbreath Quoted in Law360: DC Circuit’s White House NEPA Upheaval Sends Shockwaves

Excerpted from the November 15, 2024 edition of Law360

In a decision that shocked environmental attorneys and could potentially create chaos at federal agencies, the D.C. Circuit Court recently decided that the White House Council on Environmental Quality (CEQ) “lacks the authority to issue legally binding regulations implementing the National Environmental Policy Act (NEPA).”

In the appeal of Marin Audubon Society v. Federal Aviation Administration, attorneys had argued that the FAA and National Park Service “failed to comply with the CEQ’s NEPA-implementing regulations when they authorized more than 2500 tour flights over California’s Bay Area Parks.” This argument, however, was not addressed by the court’s majority opinion.

The justices instead chose to answer whether the CEQ has the authority under NEPA to issue such binding regulations to begin with. And they decided it does not.

Pierce Atwood environmental attorney Lisa Gilbreath noted that, “the issue of whether the CEQ possesses the authority to issue its NEPA-implementing regulations has already been raised via several amicus briefs filed before the US Supreme Court in Seven County Infrastructure Coalition v. Eagle County, and a North Dakota federal judge granted states’ motion for leave to file notice of supplemental authority with regard to the Marin Audubon decision in State of Iowa v. CEQ.”

Lisa then added, “All of that said, we have an administration change coming in January, and that could play into all of this as well. At this point, I think we’re in a wait-and-see position for at least a month or two because of the possibility for en bac review, because of the possibility for Supreme Court review and because agency heads are all about to change.”

Click here for Lisa's recent alert on this topic.

The complete article by Madeline Lyskawa can be found in the November 15, 2024 edition of Law 360