On November 12, 2024, the District of Columbia Circuit Court of Appeals (“DC Circuit”) took a dramatic step on the rocky road to ensuring Federal agency compliance with the requirements of the National Environmental Policy Act (“NEPA”). In its opinion, deciding the fate of the Airspace Management Plan governing flights over four National Parks in the vicinity of San Francisco, without environmental review under NEPA, Marin Audubon Society, et.al. vs. FAA, et.al, No. 23-1067, the Court held that the regulations promulgated by the Council on Environmental Quality (“CEQ”), an entity within the Executive Office of the President, and upon which FAA relied in its decision to approve the project based on a Categorical Exclusion from NEPA review (“CATEX”), and “ which purport to govern how all Federal Agencies must comply with the National Environmental Policy Act, are Ultra Vires”. This is because CEQ owes its rule-making authority “not to legislation but to an Executive Order of the President.” However, as the Court went on to state “an Executive Order is not ‘law’ within the meaning of the Constitution.” Marin Audubon, P. 8, quoting California v. EPA, 72 F.4th 308, 318 (2023).
The decision in Marine Audubon, ordering vacatur of the Plan approval, although only 2 weeks old, has vast consequences for areas impacted, or which will be impacted, by airport development projects and changes in aircraft flight plans. Up to this point in history, FAA has relied principally on CATEX to escape more comprehensive environmental review, on the ground, among others, that its plan “normally does not have significant effects on the environment”. Marin Audubon, p.5, citing 40 C.F.R. 1501.3 (a)(1) (2020). As CATEX are not subject to the typical public review and comment requirements, FAA has been freed from uncertainty about the future integrity of its plan, or any changes required by public opposition.
It is clear that FAA programs currently in development will have to comply with the Court’s ruling, and perform some level of environmental review, involving public input (unless overturned by the U.S. Supreme Court, which typically could take at least a year to reach a decision). What is not as clear is the fate of the large number of projects that have already been reviewed and approved based on CATEX, but not yet implemented. It is yet to be seen if the Courts revisit the initial decision, and halt the progress of the projects pending the completion of some level of environmental review. Stay tuned to see if the road to unfettered airport and airspace development is now at least partially closed.