Major court decision could invalidate many federal environmental regulations
In what could be a major legal ruling [pdf], a two-judge decision this week in the DC Circuit Court ruled that the White House Council on Environmental Quality (CEQ), which has for years imposed environmental rules on other federal agencies based on the National Environmental Policy Act (NEPA), does not have the statutory authority to do so, thus invalidating every regulation so imposed.
All three members of the three-judge panel agreed that the Agencies acted arbitrarily and capriciously in [in this particular case]. However, before reaching that conclusion, the majority analyzed whether the CEQ regulations the Agencies followed in adopting the plan were valid, an argument not raised by any of the parties. The majority held, sua sponte, that because there is no statute stating or suggesting that US Congress has empowered the CEQ to issue rules binding on other agencies, the CEQ has no lawful authority to promulgate such regulations.
…Although this decision does not explicitly vacate any action taken by the CEQ, it does establish a precedent that CEQ rules lack statutory authorization, and therefore that other agency actions taken under the CEQ framework are at risk of being vacated. If this decision is not overturned by the full appellate court sitting en banc or by the US Supreme Court, it has the potential to completely change the landscape of NEPA review.
The case is complicated, partly because the Byzantine nature of the federal bureaucracy and the many agencies involved. (It is almost as if these agencies created that complexity to confuse and protect themselves.)
The heart of the decision is that CEQ was apparently first created as an “advisory” body to help other federal agencies follow the intent of NEPA in their own rule-making, but instead soon became a “regulatory” body whose rulings other agencies were required to follow. As that authority was never given it by Congress, CEQ exceeded its authority by making its rulings mandatory.
This court decision will likely leave many agencies on their own in establishing environmental regulations, based on NEPA. However, even that regulatory ability faces limitations, based on the Supreme Court’s recent Chevron decision, which said that government agencies do not have right to promulgate new regulations that are not specifically described in congressional law.
In other words, Chevron says that the bureaucracy cannot make things up, based on its own vague opinions.
The trend of all these court rulings appears aimed at limiting the power of the federal bureaucracy. It will however take some time to determine how much that power is limited, as lawsuits begin to percolate through the courts. If there are lot of lawsuits (which does appear to be happening) we should therefore expect that power to be limited significanly.
The support of my readers through the years has given me the freedom and ability to analyze objectively the ongoing renaissance in space, as well as the cultural changes -- for good or ill -- that are happening across America. Four years ago, just before the 2020 election I wrote that Joe Biden's mental health was suspect. Only in this year has the propaganda mainstream media decided to recognize that basic fact.
Fourteen years ago I wrote that SLS and Orion were a bad ideas, a waste of money, would be years behind schedule, and better replaced by commercial private enterprise. Even today NASA and Congress refuse to recognize this reality.
In 2020 when the world panicked over COVID I wrote that the panic was unnecessary, that the virus was apparently simply a variation of the flu, that masks were not simply pointless but if worn incorrectly were a health threat, that the lockdowns were a disaster and did nothing to stop the spread of COVID. Only in the past year have some of our so-called experts in the health field have begun to recognize these facts.
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In what could be a major legal ruling [pdf], a two-judge decision this week in the DC Circuit Court ruled that the White House Council on Environmental Quality (CEQ), which has for years imposed environmental rules on other federal agencies based on the National Environmental Policy Act (NEPA), does not have the statutory authority to do so, thus invalidating every regulation so imposed.
All three members of the three-judge panel agreed that the Agencies acted arbitrarily and capriciously in [in this particular case]. However, before reaching that conclusion, the majority analyzed whether the CEQ regulations the Agencies followed in adopting the plan were valid, an argument not raised by any of the parties. The majority held, sua sponte, that because there is no statute stating or suggesting that US Congress has empowered the CEQ to issue rules binding on other agencies, the CEQ has no lawful authority to promulgate such regulations.
…Although this decision does not explicitly vacate any action taken by the CEQ, it does establish a precedent that CEQ rules lack statutory authorization, and therefore that other agency actions taken under the CEQ framework are at risk of being vacated. If this decision is not overturned by the full appellate court sitting en banc or by the US Supreme Court, it has the potential to completely change the landscape of NEPA review.
The case is complicated, partly because the Byzantine nature of the federal bureaucracy and the many agencies involved. (It is almost as if these agencies created that complexity to confuse and protect themselves.)
The heart of the decision is that CEQ was apparently first created as an “advisory” body to help other federal agencies follow the intent of NEPA in their own rule-making, but instead soon became a “regulatory” body whose rulings other agencies were required to follow. As that authority was never given it by Congress, CEQ exceeded its authority by making its rulings mandatory.
This court decision will likely leave many agencies on their own in establishing environmental regulations, based on NEPA. However, even that regulatory ability faces limitations, based on the Supreme Court’s recent Chevron decision, which said that government agencies do not have right to promulgate new regulations that are not specifically described in congressional law.
In other words, Chevron says that the bureaucracy cannot make things up, based on its own vague opinions.
The trend of all these court rulings appears aimed at limiting the power of the federal bureaucracy. It will however take some time to determine how much that power is limited, as lawsuits begin to percolate through the courts. If there are lot of lawsuits (which does appear to be happening) we should therefore expect that power to be limited significanly.
The support of my readers through the years has given me the freedom and ability to analyze objectively the ongoing renaissance in space, as well as the cultural changes -- for good or ill -- that are happening across America. Four years ago, just before the 2020 election I wrote that Joe Biden's mental health was suspect. Only in this year has the propaganda mainstream media decided to recognize that basic fact.
Fourteen years ago I wrote that SLS and Orion were a bad ideas, a waste of money, would be years behind schedule, and better replaced by commercial private enterprise. Even today NASA and Congress refuse to recognize this reality.
In 2020 when the world panicked over COVID I wrote that the panic was unnecessary, that the virus was apparently simply a variation of the flu, that masks were not simply pointless but if worn incorrectly were a health threat, that the lockdowns were a disaster and did nothing to stop the spread of COVID. Only in the past year have some of our so-called experts in the health field have begun to recognize these facts.
Your help allows me to do this kind of intelligent analysis. I take no advertising or sponsors, so my reporting isn't influenced by donations by established space or drug companies. Instead, I rely entirely on donations and subscriptions from my readers, which gives me the freedom to write what I think, unencumbered by outside influences.
Please consider supporting my work here at Behind the Black.
You can support me either by giving a one-time contribution or a regular subscription. There are five ways of doing so:
1. Zelle: This is the only internet method that charges no fees. All you have to do is use the Zelle link at your internet bank and give my name and email address (zimmerman at nasw dot org). What you donate is what I get.
2. Patreon: Go to my website there and pick one of five monthly subscription amounts, or by making a one-time donation.
3. A Paypal Donation:
5. Donate by check, payable to Robert Zimmerman and mailed to
Behind The Black
c/o Robert Zimmerman
P.O.Box 1262
Cortaro, AZ 85652
You can also support me by buying one of my books, as noted in the boxes interspersed throughout the webpage or shown in the menu above. And if you buy the books through the ebookit links, I get a larger cut and I get it sooner.
Wonderful news!
What’s *not* mentioned is the ‘elephant in the room’: there is no Constitutional authority to ‘regulate the environment’!!!
The fedguv only has actual authority to do about 10 things. And (regulating the) environment isn’t one of them. Reading the Constitution is a very helpful thing, these days….
It ALWAYS goes that way in a bureaucracy – mission creep. An advisory activity suddenly decides they are in charge and writing rules. The whole EPA mess needs to be cancelled and power returned to the states. If one state has a beef with another over pollution they can go to federal court.
Dennis Miller (remember him?) once noted that the Federal government had the power to defend the country and deliver the mail, and not much else.
All of this is crazy to me. We had a government client. Their people came to audit the books from our CPA practice. It should have been about content and accuracy. But they gigged us on…wait for it…all the paper documents they required us to keep on hand!! We weren’t “green” enough. I can’t wait for DOGE and Elon/Vivek to swashbuckle the waste!!
I also worked for a SDVOB Engineering firm. To print 3 large sets of drawings and specs at 65% is ludicrous. It should be all digital until final product issued!!
Jess, the counter-argument is it derives from interstate commerce.
The scope of the feds to regulate under that was broadened by a 1942 SCOTUS decision know as Wickard V Filburn that stated even intrastate commerce could affect interstate commerce. So, something could be considered local and have interstate effects on commerce.
I would argue there is a legitimate constitutional basis for some environmental regulation but a lot hinges on that decision. The rest should have been handled through state level regulation along with interstate compacts.
Much of the modern bureaucratic state was enabled by W V F.
Wouldn’t it be nice to knock over Wickard v. Filburn at the same time? It’s an insane, unconstitutional decision that has absolutely nothing to do with proper government structure/ responsibility in and of itself. But that you could knock out one of the major pillars of the “modern bureaucratic state”? Wow, I can dream, can’t I?
(It is almost as if these agencies created that complexity to confuse and protect themselves.)
Don’t forget Congress. The more byzantine the rules in the bureaucracy, the less time anyone has to say, “Hey, isn’t this Congress’ job?”
based on the Supreme Court’s recent Chevron decision
I’d rather say “based on the Supreme Court’s recent anti-Chevron decision.” So as not to confuse it with the original.
Why isn’t China concerned about climate change?
https://t.ly/ibop1