Finn Dobkin explores the implications of changes to CEQ on NEPA rules

Finn Dobkin, a Senior Policy Analyst at the George Washington University Regulatory Studies Center, published a working paper titled “Uncertain Authority,” examining recent legal and institutional changes surrounding the Council on Environmental Quality (CEQ)’s authority to issue binding National Environmental Policy Act (NEPA) rules.

In Loper Bright Enterprises v. Raimondo, the Supreme Court ruled that the National Marine Fisheries Service (NMFS) failed to comply with the APA when it promulgated rules requiring commercial fishermen to pay for onboard conservation monitors. As a result, the court overruled decades-long precedent established under Chevron v. Natural Resources Defense Council. Overruling Chevron, Chief Justice Roberts noted that the APA “requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency’s interpretation of the law simply because a statute is ambiguous.” This is important in the context of CEQ’s oversight over NEPA. The text outlining environmental review guidelines is notoriously terse and left agencies with few instructions for what environmental reviews should look like thereby requiring them to exercise independent judgement to interpret the statute.

It is important to note that Loper Bright did, however, affirm Skidmore deference. Under Skidmore, courts may consider an agency’s interpretation based on its persuasive power. This standard relies on several qualitative factors including “[the] thoroughness evident in its consideration…the validity of its reasoning…its consistency with earlier and later pronouncements…and all those factors which give it power to persuade, if lacking power to control.” Unlike Chevron, which required courts to uphold reasonable agency interpretations of ambiguous statutes, Skidmore leaves judges with broad discretion to either adopt or reject an agency’s position.

For CEQ, which now operates without clear statutory rulemaking authority independent of Loper, this creates a precarious legal environment. Courts may uphold CEQ’s interpretations in some cases based on the agency’s technical expertise but reject those same interpretations in other jurisdictions where courts find the reasoning insufficient. For instance, guidance recommending the inclusion of cumulative climate impacts in environmental reviews might be treated as persuasive by one circuit, while another may find it outside the bounds of NEPA’s statutory text. The result is a fragmented landscape in which CEQ’s influence depends heavily on judicial discretion and ideology. As Justice Kagan warned in her dissent in Loper Bright, the shift away from Chevron and toward Skidmore may invite even greater instability:

“The majority’s prescribed way of proceeding is no walk in the park. First, the majority makes clear that what is usually called Skidmore deference continues to apply. Under that decision, agency interpretations ‘constitute a body of experience and informed judgment’ that may be ‘entitled to respect.’ If the majority thinks that the same judges who argue today about where ‘ambiguity’ resides are not going to argue tomorrow about what ‘respect’ requires, I fear they will be gravely disappointed.”

This suggests that irrespective of the new agency deference standard, courts may still have wide latitude to interpret the boundaries of CEQ’s regulatory authority under Skidmore. In the absence of binding precedent, judicial decisions may instead reflect considerations such as legislative intent, broader policy implications, or differing judicial philosophies.