Federal Court takes aim at White House’s environment authority

A federal court in D.C. has issued a ruling that curtails the White House’s ability to set government-wide rules pertaining to how environmental reviews can be conducted.

On Tuesday, judges with the D.C. Circuit Court of Appeals ruled that the White House’s Council on Environmental Quality (CEQ) cannot issue regulations pertaining to the National Environmental Policy Act (NEPA) — one of the nation’s bedrock environmental laws.

NEPA is a statute that requires the federal government to assess environmental impacts of a range of potential actions, including allowing certain energy and infrastructure projects to move forward.

But, how it does so has long been up to the White House — though the court took aim at that longstanding practice in its ruling.

“The Constitution does not permit the President to seize for himself the 'law-making power of Congress' by issuing an order that, 'like a statute, authorizes a government official to promulgate . . . rules and regulations,'” said the majority opinion, authored by A. Raymond Randolph, a George H.W. Bush appointee.

“CEQ therefore had no lawful authority to promulgate these regulations,” he added.

Currently, agency processes have to abide by overarching White House governance, though this ruling casts doubt on whether they can do that going forward.

“The NEPA [regulations] build on key language in NEPA,” said William Buzbee, a law professor at Georgetown University. He noted that these rules are then applied by various federal agencies and further interpreted in hundreds or probably thousands of court decisions.”

Without that overarching guidance, “figuring out the roots of what are long settled concepts of [the] NEPA process and analytical requirements is a big issue,” he said.

For now, the ruling would only apply to cases that come through this court and not other circuit courts around the nation, but legal observers say that if it’s allowed to stand, it will have significant consequences for U.S. environmental policy.

Andrew Mergen, an environmental law professor at Harvard, said NEPA is “unique in how sparse it is” meaning that typically, it’s up to administrations to fill in the blanks and tell agencies how these environmental reviews should be conducted.

"What CEQ has done in their regulations is both, put some meat on the bones of what is expected of that statement, and promulgate a lot of streamlining procedures," such as excluding certain projects from review.

“Those are innovations from CEQ to make the statute workable,” he said.

While some expressed concern that the ruling could cause confusion, Devin Watkins, an attorney with the conservative Competitive Enterprise Institute, praised it as a win for the rule of law.

“In the short run, it's going to take a while before judges can figure out what they think the statute means. In the long run, it means once judges decide that, the only way to change is to go through Congress, which is a lot harder to do than a new presidential administration just issuing a new regulation and that means a lot more stability in the long run,” he said.

But, it’s also not clear whether the ruling will actually stand. Mergen said he expects the further review of the decision will be sought so it could be heard by the entire circuit, which may issue a different ruling.

The ruling comes a few months after a Supreme Court ruling further limited the power of the executive branch, saying that judges no longer have to defer to the agency’s interpretation of what a law means.