On Nov. 12, 2024, the U.S. Court of Appeals for the D.C. Circuit raised and answered the question of whether the White House Council on Environmental Quality (CEQ) has the authority to issue regulations that bind other agencies under the National Environmental Policy Act (NEPA). In doing so, the court rejected longstanding precedent and principles to resolve a question of law that neither party had briefed and was not necessary to resolve the case. The decision adds to a growing trend of courts taking steps to narrow administrative agencies’ authority and undermine reliance on longstanding regulatory approaches that have been consistently upheld by the courts until now.

In this case, Marin Audubon Society, et al., v. Federal Aviation Administration, et al., plaintiffs challenged two federal agencies’ environmental analysis of an air tour management plan over four national parks. The plaintiffs argued that the agencies improperly relied on current operations as the baseline for that analysis, and thus improperly found they did not need to prepare a more complex environmental assessment (EA) or impact statement (EIS).

In our paper we summarize the Marin Audubon decision, provide background on agency implementation of NEPA and courts’ remand authorities, and discuss the case’s legal significance and emerging and potential consequences.