White House environmental office lacks rulemaking authority, judge rules

Reuters

04-02-2025

Feb 4 (Reuters) - A federal judge in North Dakota threw out a Biden administration rule governing the U.S. environmental review process for infrastructure projects, saying the White House Council on Environmental Quality lacks authority to issue regulations.
U.S. District Judge Daniel Traynor in Bismarck on Monday sided with, opens new tab 20 Republican-led states who in a lawsuit filed in May argued the council exceeded its authority by adopting a rule that they said would increase project costs and unfairly favor clean energy projects.
That 2024 rule sought to streamline analysis under the National Environmental Policy Act, or NEPA, a 1969 law that requires environmental reviews for major projects that receive federal permits or funding.
NEPA reviews are the frequent focus of litigation, which can delay the construction on projects for years. The law also established the council, which Democratic former President Jimmy Carter in a 1977 executive order instructed to adopt regulations to implement the law that other agencies must follow.
That executive order was revoked by U.S. President Donald Trump on the Republican's first day back in office on Jan. 20. The executive order also required the Council on Environmental Quality (CEQ) to propose rescinding all NEPA regulations, including the Biden-era one, by Feb. 19.
Traynor, who was appointed by Trump in his first term in office, said Congress never authorized CEQ in the first place to adopt regulations, only to make recommendations to the president on national policy.
He said that while CEQ was long assumed to have regulatory power, courts including the U.S. Supreme Court despite reviewing cases concerning NEPA regulations never closely examined CEQ's underlying authority.
"The truth is that for the past forty years all three branches of government operated under the erroneous assumption that CEQ had authority," Traynor wrote. "But now everyone knows the state of the emperor's clothing and it is something we cannot unsee."
He noted a 2-1 panel of the U.S. Court of Appeals for the D.C. Circuit in November similarly concluded CEQ lacked authority to issue enforceable regulations in a separate case concerning air tour plans for national parks. The full D.C. Circuit last week declined to reconsider that ruling.
Democratic former President Joe Biden's administration had called the 2024 rule a "core element" of his efforts to build out clean energy systems and to rebuild American infrastructure.
The rule built on amendments to the NEPA regulations that were finalized in 2022, when the Biden administration began rolling back changes by Trump's first administration that made the process less stringent.
The rule was defended in court not just by Biden's administration but by several environmental groups, 13 Democratic-led states, the District of Columbia and New York City, who all intervened pre-election to defend the policy. They argued CEQ's authority had long been recognized by courts.
"The court's ruling will weaken environmental reviews and will further harm communities already struggling with polluted land, air, and water," Jan Hasselman, a lawyer for the environmental groups at Earthjustice, said in a statement.
The case is State of Iowa v. Council on Environmental Quality, U.S. District Court for the District of North Dakota, No. 1:24-cv-00089.
For the Republican-led states: Eric Wessan of the Iowa Office of Attorney General and Philip Axt of the North Dakota Office of Attorney General
For the Council on Environmental Quality: Gregory Cumming of the U.S. Department of Justice
For the Democratic-led states: Elizabeth Harris of the Washington State Attorney General's Office
For the environmental groups: Jan Hasselman of Earthjustice