Marin Audubon Society v. FAA seemed “fairly unremarkable,” says environmental lawyer Susan Jane Brown. At stake lay an issue as straightforward as environmental litigation gets: Before flying recreational aircraft over national parks, the plaintiffs said, the agencies had to review the impacts on wildlife and park visitors as dictated by federal law. Filed by multiple parties, including the Marin Audubon Society, a well-known Bay Area organization, it was the kind of routine suit central to the ongoing work of enforcing the law, and in this case, creating a calmer world for animals—like the western snowy plovers at Point Reyes.
The plaintiffs won their suit in the D.C. Circuit Court of Appeals in November 2024. But the case has been swept up in a rupture over federal rulemaking—specifically, the National Environmental Policy Act (NEPA), which keeps federal agencies accountable for their environmental impacts. The environmental victory has been overshadowed by one judge’s unexpected attack on NEPA’s bedrock guidelines.
This blow to NEPA seemingly came out of nowhere. The plaintiffs got what they asked for—but also got an opinion that destabilized the very foundation of their question. The ruling came at a terrible time for the 1970 bipartisan law. Two months after the ruling, the Trump administration—vowing to “drill, baby, drill”—took office and issued an executive order to “unleash American energy.” Then in February 2025, a court in North Dakota ruled on another NEPA case to dissolve the guidelines, citing Marin Audubon v. FAA. In the span of a few months, 50 years of rulemaking on how to review environmental impacts blew up.
What remains is unclear. The old rulebook is gone—and an unknown paradigm might soon take its place. “If you’re [a] regulated industry, this is chaos,” says Brown. “It’s a mess.” Trump’s executive order had criticized the “burdensome and ideologically motivated regulations,” and proposed the changes to “expedite and simplify” NEPA’s permitting process.
Five decades of stability
President Richard Nixon signed NEPA into law in 1970. The act instructed federal agencies to evaluate the environmental impacts of projects before implementing them—to “look before you leap,” as a government official put it in 2022. At 15 pages long, the statute was “short and sweet,” says Brown, who has worked on NEPA cases regarding forest lands for the duration of her career. The statute also created an advisory body, the Council on Environmental Quality. But in terms of where and how an agency should look for impacts, and what looking might actually mean, the statue’s guidance was limited.
For example: agencies had to assess the alternatives to any proposed project. But technically, there are infinitely many alternatives to anything—how many should the agency actually analyze? How long should a NEPA review take, and how long was too long? What kinds of agency actions—a change in a management plan, a new road, a bigger park—needed a full-blown environmental impact statement, versus a more abbreviated environmental assessment? Where and how could the public give input?
Some clarity arrived in 1978 when President Jimmy Carter gave the Council on Environmental Quality (CEQ) the power to issue rules on how NEPA should be implemented. Over multiple documents over the past few decades, CEQ fleshed out what a NEPA analysis should look like, for agencies across the government—from how many alternatives they should consider, to how they should respond to comments, to how long different kinds of NEPA analysis could take.
The only issue? This White House office may not have had the power to do what it was doing. “It’s the worst-kept secret that [the Council on Environmental Quality] does not have rule-making authority,” Brown says. “Only the legislature can give agencies rule-making authority.”
For the most part, everyone brushed over that detail. Decades of court cases had treated CEQ’s guidelines as authoritative. “If it ain’t broke, don’t fix it,” Brown says.
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The council’s role—and rules—remained essentially unchanged from 1978 to 2020, across six different presidential administrations, Republican and Democrat. Trump’s first administration brought the first major upheaval to CEQ, rewriting its NEPA rules to make them more industry-friendly and limit public engagement; Biden promptly restored the old rules when he entered office.
“Nobody’s changed it because it works, even if it’s expensive and time-consuming,” says Jeff Alvarez, the founder of the Wildlife Project, a Sacramento-based consultancy that specializes in NEPA reviews. One of the most significant parts of NEPA is an avenue for the public to weigh in on how federal agencies design projects. “Since the environment can’t speak for itself, it’s really more important for environmental organizations and environmental interests to be able to speak up,” says Barbara Salzman, president of the Marin Audubon Society.
Three months of chaos
After a half-century of relative stability, a D.C. Circuit Court of Appeals’ November ruling on Marin Audubon took an unexpected sledgehammer to this foundational legislation. Much of the ruling was standard: the three-judge panel unanimously decided that federal agencies acted “arbitrarily” (a legal term of art) in assessing how tourist flights disturbed wildlife at Point Reyes, Golden Gate National Recreation Area, Muir Woods, and the San Francisco Maritime Historical Park. “The skies above national parks should become much quieter,” celebrated a press release after the ruling from PEER, Public Employees for Environmental Responsibility, one of the key plaintiffs on the suit.
But out of nowhere, sandwiched in the ruling, came another set of opinions written by one of the three judges, Arthur Randolph. He declared that CEQ had never been given rulemaking authority. “What is quite remarkable is that this issue has remained largely undetected and undecided for so many years in so many cases,” he wrote. (Another judge dissented in part to Randolph’s opinion.)
Though multiple lawyers knew Randolph had a bone to pick with CEQ, that he brought his issues up in this case confused both sides of the courtroom. “Neither side had argued that,” says Jeff Ruch, a lawyer with PEER. “It’s sort of dumb.”
Everyone in the lawsuit asked for the case to be reheard in an effort to strike Randolph’s CEQ opinion from the record. In a January 31 decision, the appeals court denied the rehearing, though they agreed CEQ’s authority was irrelevant to the real matter at hand—noisy aircraft over animals. And yet, the damage was done: NEPA’s worst-kept secret was not only out, but public record in federal court.
Across the country in a North Dakota courtroom, in another NEPA case, another judge took note. In one fell swoop, the judge’s decision threw out Biden’s NEPA rules and stripped CEQ of its authority over agencies. “Now everyone knows the state of the emperor’s clothing and it is something we cannot unsee,” the judge wrote.
That ruling emerged 15 days into Trump’s second term. In one of his first executive orders on “Unleashing American Energy,” he also rescinded CEQ’s authority. The Marin Audubon v. FAA opinion floated the idea; the Iowa v. CEQ ruling made it concrete. CEQ’s authority became legally defunct overnight.
The council issued an interim final rule dissolving its own regulations, citing Marin Audubon v. FAA as part of the rationale. CEQ’s website has been wiped since January 20.
What comes next?
The Marin Audubon Society is now saddled with an unexpected place in history—and the case wasn’t even its idea. PEER had invited it to join as a plaintiff, along with the Watershed Alliance of Marin, two organizations with standing to sue on behalf of wildlife in the Bay Area. Because Marin Audubon’s name came first alphabetically among the plaintiffs, it will forever title the suit. “It’s pretty terrible,” Salzman says. “Our name is, in posterity, connected with this awful situation.”
The only certainty for NEPA’s future now seems to be uncertainty. The Supreme Court has heard arguments on another NEPA case, Seven County Infrastructure Coalition v. Eagle County, Colorado, that could limit the scope of the environmental impacts that agencies study. In the next year, without CEQ’s rules, each federal agency must now come up with its own set of guidelines on how to review projects’ environmental impacts in compliance with Trump’s orders—a bureaucratic, intricate task that must happen while Trump guts agency workforces and budgets.
Still, the Trump administration’s goals for environmental reviews are straightforward: to “reduce unnecessarily lengthy processes and associated costs” and avoid doing environmental reviews at all where possible, as it aims to log more trees, drill for more oil, and dig up more minerals. But removing CEQ could be “counterproductive” to that goal, says Eric Biber, a UC Berkeley law professor who specializes in NEPA. Without consolidated rules to follow, “it’ll make it harder for agencies and courts to do NEPA implementation,” he says.
Ironically, figuring out how much aircraft tours over Bay Area national parks bother birds could be a “test case,” says Ruch. The court has given the Federal Aviation Administration and National Park Service a year to do a NEPA review on the flights’ impacts. As the clock ticks, the agencies must now propose new rules for NEPA and then follow them. “We’re building the plane as we fly it,” Brown says. “We hope we build it before we need to land.”
Alvarez says without the CEQ guidelines, some people who decide whether to conduct NEPA reviews on federal sites are deciding it’s not worth it. “People like that are saying, well, NEPA is going to be gutted. We won’t do no NEPA anymore.” It’s a scary prospect for him, with wide-ranging impacts for both the environmental consultancy industry, and the future of the environments they evaluate. “Almost everybody else is going to pay in one way or the other,” he says.
