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.
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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.
Readers!
Please consider supporting my work here at Behind the Black. Your support allows 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. 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. Only now does it appear that Washington might finally 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.
You can support me either by giving a one-time contribution or a regular subscription. There are four 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 or subscription:
4. 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.
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
Blair Ivey and Jess,
Here is a list of authorities, powers, and responsibilities of the federal government, as stated in the Constitution. The Tenth Amendment specifies that the federal government has only the powers granted to it by the Constitution and no more. The federal government is not allowed to usurp any powers that are not granted to it by the Constitution, yet somehow it has.
The list:
From Article I, Section 8:
1) Generate revenue (e.g. taxes), mint money, borrow money, and pay debts (e.g. expenses, repay loans) (justifying a Department of the Treasury).
2) “[P]rovide for the common Defence and general Welfare” including declaring war, raising armies, and maintaining a navy (justifying a Department of War, or Department of Defense).
3) “To regulate Commerce” interstate and international, but not intrastate.
4) “To establish an uniform Rule of Naturalization” (allowing foreigners to become U.S. citizens)
5) “[F]ix the Standard of Weights and Measures” (“A pint is a pound the [country] around”)
6) “To provide for the Punishment of counterfeiting” (justifying the original law enforcement duties of the Secret Service)
7) “To establish Post Offices and post Roads” (who mentioned the U.S. has the power to deliver the mail?)
8) “To promote the Progress of Science and useful Arts, by” establishing a patent office and copyright office (protecting intellectual property as well as physical property).
9) “To constitute Tribunals” which is to say to peaceably resolve disputes as a disinterested third party. (Justifying the Attorney General)
10) “To define and punish Piracies and Felonies committed on the high Seas” (justifying additional law enforcement, but only on the high seas).
From Article II, Section 2:
11) [T]o make treaties and send ambassadors to foreign nations (justifying a Department of Peace, which we know as the Department of State).
The Bill of Rights:
12) Assures that government protects our rights, not violates them. Unlike the rest of the world, much of which tried to copy the Bill of Rights, the Constitution is written to acknowledge that “all men are created equal” (no one has more or fewer rights than any other, Amendment XIV, Section 1)
The Tenth Amendment makes clear that the federal government is to stay out of the way of We the People and also stay out of the way of the states. Most of the Constitution defines how the government is run. Most of the rest limits its power, authority, and duties, assigning those “to the States respectively, or to [We] the people.”
The Constitution’s Preamble also explains the limits that We the People gave to the federal government, the three purposes for government:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
1) to defend We the People from all enemies, foreign and domestic:
“insure domestic Tranquility, provide for the common defence, promote the general Welfare,”
2) to provide an indifferent third party to peaceably resolve disputes:
“establish Justice,”
3) to stay out of We the People’s way:
“to form a more perfect Union, … and secure the Blessings of Liberty to ourselves and our Posterity”
“The job of governments is to provide a clear and just legal framework for its citizens to follow, without telling those citizens what to do each step of the way.” — Robert Zimmerman Conscious Choice page 232
A complete list of authorities, powers, and responsibilities that the federal government has usurped would be extremely long. It could be shortened by listing the Departments and agencies that violate the Constitution. Also in violation is Congress passing to bureaucrats, who do not represent us, Congress’s constitutional powers to borrow and mint money and to make laws, leaving We the People without the representation that the Constitution guarantees. We are being taxed not by our representatives, but non-financially through regulations and rules that have the force of law; it is a form of taxation without representation.
We have also seen, since the election of Obama to president, the federal government taking sides in politics, clearly a complete violation of Section 1 of the Fourteenth Amendment. Donald Trump and Elon Musk are two very visible victims of this fundamental transformation of America. No wonder they have teamed up. No wonder the DC swamp is so frightened. No wonder there have been actual assassination attempts on Trump.
Trump is being called “literally Hitler,” sometimes by Democrats in federal offices, and there were at least 20 assassination plots on Hitler’s life and at least three attempts. The attempts on Trump’s life may be stochastic, generated by rousing up the Democratic Party rabble in a way that some of them will try what was tried on Hitler. The Democratic Party has a whole new set of “American” values.