Author: Brigit Rollins

In mid-July, the United States Fish and Wildlife Service (“FWS”) together with the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”) finalized a rule to rescind the regulatory definition of “harm” under the Endangered Species Act (“ESA”). The term is part of the ESA’s overall prohibition on “take” of protected wildlife and has been defined through regulation since 1975. In rescinding the rule, the Services allege that the definition of “harm” does not match the best possible interpretation of the ESA. Since the recission was finalized, at least four federal lawsuits have been filed by environmental groups and Native American Tribes, claiming that rescinding the definition violates federal law.

Under the ESA it is illegal to “take” any wildlife species that have been listed as either threatened or endangered. The term “take” is broadly defined under the ESA as “to harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or to attempt to engage in any such conduct.” FWS first adopted a regulatory definition of “harm” for the purposes of “take” in 1975. That definition was slightly modified in 1981 and until the recission rule, “harm” was defined as “an act which actually kills or injures wildlife [including] significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” NMFS adopted the same definition in 1999.

By defining “harm” to include “significant habitat modification or degradation” that “actually kills or injures wildlife,” the Services interpreted the prohibition on “take” of protected species to include destruction of species habitat even if habitat destruction did not involve directly killing or injuring a member of the species. For example, under the 1981 definition of “harm,” it would be a violation of the ESA to cut down a stand of trees that provide habitat to an endangered species of bird even if none were directly killed when the trees were cut down.

The Supreme Court upheld this definition of “harm” in its 1995 decision, Babbitt v. Sweet Home Chapter of Communities for A Great Oregon,where the Court held 6-3 that the definition was “reasonable” in light of the “broad purpose” of the ESA to protect endangered and threatened wildlife. Because the Court concluded that the definition was reasonable, it relied on the doctrine of Chevron deference to decide the case. In a dissenting opinion, Justice Scalia disagreed with the majority’s conclusion and instead would have limited it to acts that directly kill or injure protected wildlife. According to Justice Scalia, limiting “harm” to direct acts against wildlife makes sense when looking at the statutory definition of “take” which includes other direct actions like pursue, hunt, shoot, and wound.

In their final rule to rescind the “harm” definition, the Services explained that the action was prompted by the Supreme Court’s 2024 ruling in Loper Bright Enters. v. Raimondo,where the Court overturned Chevron deference. When the Court issued Loper Bright, it recognized that many of its previous holdings were based on Chevron deference and concluded that those cases were still good law and should not be considered invalid or overturned because of the Court’s Loper Bright decision.

Although the Services acknowledged that pasts cases which relied on Chevron deference were still valid in their final recission rule, they argued that, as part of the Executive Branch, they have a constitutional responsibility to “take care that the laws be faithfully executed.” Because the Services believe that the single, best interpretation of the ESA’s “take” prohibition was given by Justice Scalia in his Babbit dissent, they moved to rescind the “harm” definition and limit “take” to actions that directly kill or injure protected species.

The recission rule is set to go into effect on September 14, 2026, and already at least four lawsuits have been filed to challenge it. All four claim that the recission violates the Administrative Procedure Act (“APA”) and ask that the rule be overturned. The plaintiffs in each lawsuit allege that the recission rule violates the APA because the Services did not provide a “reasonable rationale” for rescinding the “harm” definition.

The plaintiffs claim that the recission rule is “arbitrary and capricious” because the only explanation the Services provided to support rescinding the “harm” definition is an improper interpretation of Loper Bright. They argue that under the Loper Bright standard, it is courts, not agencies, that determine the single, best interpretation of the law. According to the plaintiffs, the recission rule cannot be the best interpretation of “harm” because it is one that the Supreme Court has rejected. They claim that the Services failed to explain how or why Justice Scalia’s dissent in Babbit, rather than the majority opinion, articulates the “single, best” meaning of “take” under the ESA.

Rescinding the regulatory definition of “harm” is likely to have broad impacts for a variety of reasons. For property owners and agricultural producers, the recission could result in reduced regulation at least as long as the rule remains in place. However, perhaps an unintended outcome of the recission rule is the opportunity to get a better understanding of how courts will treat Loper Bright going forward. The standard established by the Supreme Court in Loper Bright is still relatively new, particularly when compared with Chevron deference which was in place for decades before being overturned. For an industry as heavily regulated as agriculture, how courts treat agency rules interpreting statutory language is an important part of understanding how the law impacts day-to-day operations.

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Recommended citation format: Rollins, Brigit. “Services Rescind ESA Definition of “Harm,” Face Lawsuits.” Southern Ag Today 6(34.5). August 21, 2026. Permalink

On April 27, the United States Supreme Court will hear oral arguments in Durnell v. Monsanto, a case brought by a Missouri plaintiff who alleges that exposure to the herbicide Roundup and its active ingredient, glyphosate, caused him to develop non-Hodgkin’s lymphoma. The case is one of thousands filed over the past decade against Monsanto Company (now owned by Bayer) by plaintiffs claiming that Roundup use caused cancer and that Monsanto failed to warn consumers of the risk. Bayer argues that these state law claims are preempted by federal pesticide law and should be dismissed. After years of litigation, that question is now before the Supreme Court, and its ruling could affect not only Roundup-related cases but also future lawsuits involving other pesticides.

Roundup is among the most widely used herbicides in the United States. Since the 1990s, it has been central to Monsanto’s “Roundup Ready” system, which pairs glyphosate-resistant seeds with herbicide application to allow spraying during growing seasons. Roundup has also been widely used in home and municipal landscaping.

Since 2015, tens of thousands of lawsuits have been filed against Bayer alleging that Roundup caused cancer. These cases are typically brought under state products liability law, particularly failure to warn claims. Bayer has consistently argued that such claims are preempted by federal law. Only a small number of cases have gone to trial, and outcomes have varied widely. Some juries have ruled in Bayer’s favor, while others have awarded plaintiffs damages exceeding $2 billion. Federal appellate courts are divided: the Third Circuit has held that federal law preempts these claims, while the Ninth and Eleventh Circuits have held that it does not.

The plaintiff in Durnell filed suit in Missouri state court in 2019. A jury found that Monsanto failed to warn him of potential health risks and awarded $1.25 million in damages. The Missouri Court of Appeals affirmed the verdict, rejecting Bayer’s preemption argument. The Missouri Supreme Court declined to review the case, bringing the matter to the U.S. Supreme Court.

At the center of the dispute is the Federal Insecticide, Rodenticide, and Fungicide Act (FIFRA), the primary federal law governing pesticide regulation. Under FIFRA, pesticides must be approved by the Environmental Protection Agency (EPA) before being sold or distributed. The EPA must determine that a pesticide will not cause “unreasonable adverse effects” on the environment, defined as risks to human health or the environment balanced against the product’s benefits. This evaluation includes assessing potential carcinogenicity.

FIFRA also defines the role of states in regulating pesticides. It prohibits states from imposing labeling or packaging requirements that are “in addition to or different from” federal requirements. It further bans the sale of “misbranded” pesticides, meaning products whose labels lack necessary warnings to protect health and the environment.

Failure to warn is a state law tort commonly raised in products liability cases. It does not allege that a product is defective, but that the manufacturer failed to provide adequate warnings or instructions. To succeed, a plaintiff must show both that warnings were insufficient and that the risk was known or reasonably knowable at the time.

The Supreme Court addressed FIFRA preemption once before in Bates v. Dow Agrosciences LLC. There, the Court held that state labeling requirements are preempted if they impose obligations “in addition to or different from” FIFRA. However, state law claims are not preempted if they are equivalent to and consistent with FIFRA’s prohibition on misbranding.

Bayer relies on Bates to argue that the plaintiff’s claim is preempted because it would effectively require adding a cancer warning to Roundup’s label. Bayer contends that complying with a state judgment would force it to alter federally approved labeling, which FIFRA prohibits.

The plaintiff argues the opposite, insisting that his claim parallels FIFRA’s misbranding provisions and is therefore not preempted. Citing Bates, he maintains that state law claims consistent with federal misbranding standards remain valid.

The case includes a notable twist. Unlike many similar lawsuits, the plaintiff bases his failure to warn claim not on product labels but on Monsanto’s marketing materials from the 1990s and 2000s. He alleges that advertisements portrayed Roundup as completely safe, showing users applying it in shorts and tee shirts. Because FIFRA governs labeling rather than marketing, the plaintiff argues that his claim falls outside the scope of federal preemption.

Bayer disputes this distinction, asserting that regardless of how the claim is framed, resolving it would still require changes to product labeling, bringing it within FIFRA’s preemptive scope.

At this point, it is difficult to predict how the Supreme Court will rule. An amicus brief from the Office of the Solicitor General supports Bayer’s position, while advocacy groups such as the Make America Healthy Again movement back the plaintiff. Whatever the outcome, the Court’s decision is likely to have far-reaching consequences, shaping pesticide regulation and influencing thousands of ongoing and future cases.

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Rollins, Brigit. “Durnell v. Monsanto: Pesticide Liability at the Supreme Court.” Southern Ag Today 6(17.5). April 24, 2026. Permalink

Environmental plaintiffs are seeking summary judgment in a lawsuit they filed in 2023 to challenge the Environmental Protection Agency’s (“EPA”) 2022 decision to register the pesticides Enlist One and Enlist Duo for use through January 2029. Specifically, the plaintiffs have asked the court to revoke the labels for both Enlist products, a move that would make both products unavailable for use.

Both Enlist One and Enlist Duo are herbicide products manufactured and sold by Corteva Agriscience LLC. Both products contain as an active ingredient the choline salt of 2,4-dichlogophenoxyacetic acid, otherwise known as 2,4-D. Enlist Duo also includes glyphosate as a second active ingredient. Enlist One and Enlist Duo have both been approved for use on 2,4-D resistant corn, soybean, and cotton crops in 34 states. 

A pesticide may not be sold or distributed in the United States until EPA registers the pesticide for use under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). To register a pesticide, FIFRA requires EPA to determine that using the pesticide for its intended purpose will not cause “unreasonable adverse effects on the environment” which is defined as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of the pesticide.” In other words, FIFRA requires EPA to register a pesticide for use only if the agency has determined that the costs of using the pesticide in its intended manner do not outweigh the benefits.

When EPA registered Enlist One and Enlist Duo for use in 2022, the agency concluded that one of the main benefits of using Enlist products was the products’ effectiveness against herbicide-resistant broadleaf weeds in cotton and soybean crops. EPA also identified certain environmental risks such as potential harm to pollinators, pollinator host plants such as milkweed, and other wildlife species. To address those risks, EPA included additional application requirements on the Enlist labels to reduce the amount of 2,4-D that could travel off target via spray drift or runoff. Those measures included a 30-foot spray drift buffer and a requirement that Enlist applicators select mitigation measures from a “pick list” developed by EPA for the purpose of limiting pesticide exposure to wildlife. Each mitigation measure is assigned a point value, and to apply Enlist One or Enlist Duo, applicators will need to achieve four to six points of runoff mitigation depending on their location. To learn more about EPA’s mitigation “pick list” for herbicides, click here.

The plaintiffs in Ctr. For Food Safety v. Envtl. Protection Agency filed a motion for summary judgment with the court in late August.  In that motion, the plaintiffs argue that EPA did not satisfy FIFRA’s “unreasonable adverse effects on the environment” standard when registering Enlist One and Enlist Duo because EPA (1) understated or ignored important costs to the environment; (2) overstated alleged benefits; and (3) improperly relied on ineffective mitigation.

First, the plaintiffs argue that EPA’s 2022 registration failed to fully analyze the environmental costs posed by use of Enlist products. According to the plaintiffs, when EPA drafted its 2022 registration decision it failed to evaluate current usage data for Enlist products. Instead, EPA relied on Enlist use data from 2018 and 2019 which the plaintiffs claim was before the widespread adoption of Enlist products. Additionally, the plaintiffs argue that EPA failed to consider the future use of Enlist which the plaintiffs claim will continue to increase during the seven-year registration period. By failing to consider the actual amount of Enlist products that would be applied during the registration period, the plaintiffs claim that EPA understated the environmental costs posed by Enlist. 

Next, the plaintiffs argued that EPA overstated the benefits of using Enlist One and Enlist Duo by exaggerating the effectiveness of Enlist products on herbicide-resistant weeds. The plaintiffs claim that although EPA suggests using Enlist with other pesticides or weed management tools to avoid contributing to the likelihood of increased herbicide resistance, evidence indicates that many applicators use Enlist products as their sole method of controlling glyphosate-resistant weeds. According to the plaintiffs, this increases the likelihood that weeds will grow more resistant to herbicides, which EPA failed to address when registering the pesticides.

Lastly, the plaintiffs claim that the mitigation measures that EPA added to the Enlist labels fail to effectively mitigate the adverse effects that Enlist One and Enlist Duo have on the environment. The mitigation measures stem from a new policy that EPA has adopted to limit the impacts of pesticide exposure to species of wildlife protected by the Endangered Species Act. Enlist One and Enlist Duo were some of the first products to have new mitigation measures added to their labels as a result of this policy. The mitigations for Enlist include a 30-foot spray drift buffer and a requirement that applicators achieve four to six points of runoff reduction by selecting one or more mitigation activities from a “pick list” developed by EPA. 

According to the plaintiffs, EPA’s reliance on a 30-foot drift buffer is contrary to evidence showing that 2,4-D can drift further off target. The plaintiffs also argue that the runoff mitigation measures identified by EPA do not effectively reduce pesticide runoff. They claim that most farmers that use Enlist products would not have to make any changes to their applications to achieve the required number of runoff points. Therefore, the plaintiffs argue that the spray drift and runoff mitigation measures do not effectively reduce the adverse effects that Enlist One and Enlist Duo have on the environment.

In filing a motion for summary judgment, the plaintiffs have asked the court to overturn the 2022 Enlist labels. If the court does so, it would likely result in neither product remaining available for use. Additionally, the court’s ruling in this case could have broader implications for EPA’s new mitigation policy. If the court agrees with the plaintiffs that the spray drift and runoff mitigations do not satisfy FIFRA, that could impact other pesticide labels that include mitigation measures based on EPA’s policy. However, should the court disagree with the plaintiffs and find that the mitigation measures meet the FIFRA “adverse effects on the environment” standard, that would suggest that other pesticide labels with similar mitigation measures could also survive a legal challenge. Ultimately, the outcome of this court case could have effects that are felt throughout the agricultural industry. To learn more about this lawsuit, click here.

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Rollins, Brigit. “Court Asked to Overturn Registrations for Enlist One and Enlist Duo.” Southern Ag Today 5(45.5). November 7, 2025. Permalink

On April 29, 2025, the Environmental Protection Agency (“EPA”) released its Insecticide Strategy, the most recent component of EPA’s effort to revise how the agency meets its Endangered Species Act (“ESA”) responsibilities while taking actions under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). Like the final Herbicide Strategy that EPA released last September, the final Insecticide Strategy works to reduce pesticide exposure to protected wildlife by implementing mitigation measures to curb pesticide spray drift and runoff. 

EPA first announced its new policy to address pesticide exposure to species protected under the ESA in April 2022. That month, EPA announced a plan to create different strategy documents to address herbicides, insecticides, fungicides, and rodenticides. According to EPA, the new approach was necessary to address what the agency has described as a “decades-old challenge” to satisfy the agency’s obligations under both the ESA and FIFRA.

The ESA is the primary federal wildlife protection law in the United States, while FIFRA serves as the nation’s primary federal statute regulating pesticide use. Under the ESA, all federal agencies, including EPA, are required to consult with the United States Fish and Wildlife Service (“FWS”) to ensure that the actions that federal agencies fund, authorize, or carry out will not “jeopardize” the continued existence of species protected under the ESA. Since the ESA was enacted, EPA has struggled to fully satisfy its consultation responsibilities when carrying out FIFRA actions. As a result, the agency has faced numerous lawsuits filed primarily by environmental groups seeking to compel EPA to complete ESA consultation on FIFRA actions. EPA’s new policy is aimed at resolving this on-going challenge.

Under its new approach, EPA has sorted all registered pesticides into broad groups and developed mitigation measures for each group designed to reduce pesticide exposure to protected species that occurs via pesticide spray drift and runoff or erosion. In 2024, EPA issued its draft Insecticide Strategy, outlining the various mitigation measures the agency was considering for insecticides. Following a 60-day public comment period that ran from July to September, EPA has officially released the final Insecticide Strategy. 

The final Insecticide Strategy outlines various mitigation measures designed to reduce pesticide exposure to protected invertebrate species by limiting pesticide spray drift and runoff/erosion. As in the draft Insecticide Strategy, the final Insecticide Strategy lays out a three-step framework that EPA will use to determine what additional mitigation measures to include on an insecticide label. Under step 1, EPA will establish the likelihood that a particular insecticide will have population-level impacts to protected wildlife species as either “not likely,” “low,” “medium,” or “high.” In general, mitigation will be lower when the potential for population-level impacts is lower and higher when the potential is higher. 

During step 2 of the process, EPA will determine which mitigation measures to apply. To reduce spray drift, the Insecticide Strategy relies on buffer zones and application equipment with the size of the buffer zone depending on the insecticide’s expected population-level impacts and the method of application. The largest buffer zone identified in the Strategy is a 300 foot buffer for aerial applications. All other buffer zones are identified as 100 feet or less. 

To reduce insecticide runoff and erosion, the Insecticide Strategy employs a so-called “menu” of mitigation measures. Each mitigation measure is assigned a point value from 1 to 3 with high efficacy mitigations receiving 3 points, medium efficacy mitigations receiving 2 points and low efficacy mitigations receiving 1 point. Based on the degree of population-level impacts EPA identified during step 1 of the Insecticide Strategy framework, the agency will identify the number of runoff/erosion mitigation points needed to apply a particular insecticide. Insecticides identified as having a low population-level impact will need 3 points, insecticides with a medium impact will need 6 points and insecticides with a high impact will need 9 points. 

Additionally, EPA has assigned counties different mitigation points based on how prone the fields in each county are to runoff. Counties with medium runoff potential will receive 2 mitigation points, counties with low runoff potential will receive 3 mitigation points and counties with very low runoff potential will receive 6 mitigation points. An applicator in a county with very low runoff potential applying an insecticide that requires 9 mitigation points will only need to achieve 3 extra mitigation points, while an applicator in a county with a low runoff potential applying the same insecticide would need to achieve 7 extra points.

In response to comments it received on the draft Insecticide Strategy, EPA has said that it is working towards certifying voluntary conservation programs the participation in which would automatically count as 9 mitigation points. Additionally, EPA will grant mitigation points to farmers and applicators who do not participate in a conservation program but use a qualified technical expert to plan insecticide applications.

Finally, during step 3 of the Insecticide Framework, EPA will determine where in the contiguous United States the spray drift and runoff/erosion mitigations will be required. Mitigation measures that are considered necessary across the entire contiguous United States will be included on an insecticide’s general label. Those mitigation measures that are only required in certain geographic areas known as Pesticide Use Limitation Areas (“PULAs”) will be posted as bulletins on EPA’s website Bulletins Live! Two. The insecticide’s label will instruct users to check Bulletins Live! Two prior to making an application to determine if there are any relevant PULAs with which the applicator needs to comply.

Most of the mitigation measures identified in the Insecticide Strategy are intended to reduce exposure to protected species that are not located on agricultural fields. However, EPA has identified 4 protected species that can be found on agricultural fields and would require additional in-field mitigation measures. EPA notes that mitigation measures for those species would be both geographically limited and limited to certain times of the year. Any on-field mitigations would be required through PULAs on Bulletins Live! Two.

EPA will begin implementing the Insecticide Strategy as it registers new insecticide products for use and conducts registration review of existing insecticides. 

Despite being dubbed the “final” Insecticide Strategy, EPA notes that it will continue to seek engagement on and develop certain aspects of the Strategy such as identifying additional conservation programs that would count as 9 mitigation points and further refining species maps to create more accurate PULAs. Overall, EPA believes that implementing the Insecticide Strategy will result in both more efficient ESA consultations with FWS and insecticide labels better equipped to withstand judicial review.

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Rollins, Brigit. “EPA Publishes Final Insecticide Strategy.” Southern Ag Today 5(21.5). May 23, 2025. Permalink

In November 2024, the D.C. Circuit Court of Appeals ruled that the Council on Environmental Quality (“CEQ”) does not have authority to issue binding regulations. Since the late 1970s, CEQ has issued regulations that implement the National Environmental Policy Act (“NEPA”). Federal agencies have followed these regulations when carrying out the NEPA while courts have consistently enforced them. Following the D.C. Circuit’s decision in Marin Audubon Soc’y v. Fed. Aviation Admin., No. 23-1067 (D.C. Cir. 2024), it is unclear what authority CEQ will have going forward. 

The primary purpose of NEPA is to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment[.]” To achieve this goal, NEPA outlines a process by which federal agencies can assess the environmental impacts of their actions before making final decisions. 

NEPA provides two levels of environmental review. For proposed actions that have a “reasonably foreseeable significant effect on the quality of the human environment,” agencies should issue an environmental impact statement (“EIS”) that provides detailed information about the expected impacts of the action. For all other actions, agencies should prepare a “concise” document known as an environmental assessment (“EA”) that will either establish the agency’s “finding of no significant impact” or conclude that preparation of an EIS is necessary. NEPA also allows federal agencies to identify categories of actions that do not have significant effects on the environment. Such actions are called “categorical exclusions” and do not require NEPA review. 

NEPA also established CEQ and laid out its functions and duties, such as reviewing federal government activity to ensure NEPA compliance and making an annual report to the President on the “state and condition of the environment.” 

In 1970, President Nixon issued an Executive Order directing CEQ to issue “guidelines” to federal agencies on how to prepare NEPA documents. In 1977, President Carter issued a separate Executive Order empowering CEQ to issue regulations rather than guidelines. CEQ’s first round of NEPA regulations were issued in 1978 and established a framework that is still largely in effect today. Since 1978, federal agencies have followed those regulations while drafting NEPA documents and the Supreme Court in Andrus v. Sierra Club, 442 U.S. 347 (1979), held that CEQ’s NEPA regulations are “entitled to substantial deference.”

The plaintiffs in Marin Audubon Soc’y v. Fed. Aviation Admin. initiated their lawsuit in early 2023 to challenge a finalized plan between the FAA and the NPS that would allow tourism flights to operate over four parks in northern California. When the FAA and the NPS first announced the air tour plan, they also announced their intent to develop an EA. However, the agencies ultimately concluded that the plan was categorically exempted from NEPA review. That decision prompted the plaintiffs to file suit, claiming that the FAA and the NPS had violated NEPA by failing to conduct necessary review.

The D.C. Circuit Court of Appeals issued its ruling in Marin Audubon Soc’y v. Fed. Aviation Admin. on November 12, 2024. While the court concluded that the FAA and the NPS had violated NEPA by approving the air tour management plan without drafting an EA or an EIS, the bulk of the court’s decision focused on whether CEQ had authority to issue NEPA-implementing regulations. Ultimately, the court concluded that CEQ lacked that authority.

According to the court, the text of NEPA does not grant CEQ specific rulemaking authority. While NEPA provides that CEQ shall “make recommendations to the President,” Congress did not include language instructing CEQ to draft rules and regulations to implement NEPA. Instead, CEQ relies on the Executive Orders as the basis for its rulemaking authority. According to the D.C. Circuit, agencies cannot derive rulemaking authority from Presidential Executive Orders. The court relied on the Take Care Clause of the U.S. constitution which provides that the President “shall take care that the laws with faithfully executed[.]” Specifically, the court concluded that the Take Care Clause does not authorize the President to grant federal agencies rulemaking authority to “faithfully execute” the laws passed by Congress. Only Congress has the authority to grant federal agencies rulemaking power. Because NEPA does not specifically instruct CEQ to adopt implementing regulations, the D.C. Circuit concluded that CEQ does not have the authority to issue regulations, and any regulations it has issued are non-binding.

The decision was issued by a three-judge panel, but only two judges joined in the majority ruling. The third judge on the panel dissented. Primarily, the dissenting judge noted that neither the plaintiffs nor the defendants in Marin Audubon Soc’y v. Fed. Aviation Admin. challenged CEQ’s regulations. According to the dissent, the majority’s opinion violated the “principle of party presentation,” a legal concept which provides that judges may only consider the legal questions that are presented and argued before the court. The dissent concluded that there was no reason for the majority to consider the validity of the CEQ regulations because no one had asked them to do so.

It is currently unclear exactly what impact the decision in Marin Audubon Soc’y v. Fed. Aviation Admin. will have. While the court declined to vacate CEQ’s NEPA regulations, the decision establishes a precedent that CEQ lacks rulemaking authority, and that all regulations it issues are non-binding. The parties are expected to seek an en banc review of the decision, but the timeline is currently unclear.

In the meantime, the ruling is likely to cause delays for any activity currently undergoing NEPA review as federal agencies determine how to proceed. If the decision ultimately withstands further judicial review, federal agencies may face the challenge of drafting their own NEPA regulations or otherwise establishing some sort of policy to ensure that the agency meets its NEPA obligations. At the moment, the decision in Marin Audubon Soc’y v. Fed. Aviation Admin. has provided more questions than answers.

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Rollins, Brigit. “D.C. Circuit Rules that CEQ Lacks Rulemaking Authority.” Southern Ag Today 5(1.5). January 3, 2025. Permalink