ELR Citation: 54 ELR 20156
No(s). 23-1067 (D.C. Cir. Nov 12, 2024)

In a divided opinion, a D.C. Circuit panel vacated FAA's and the National Park Service's plan governing tourist flights over four national parks in California, and also ruled that CEQ lacked the authority to issue regulations binding on other federal agencies. An environmental group sought to set aside the plan, arguing the agencies relied on an improper baseline for their environmental analysis by using the existing level of flights under interim operating authority as the status quo for their analysis. The court held that the agencies acted arbitrarily by using the air tours conducted under interim operating authority as the baseline for evaluating the plan's effects. The group also argued the agencies' decision not to prepare an EA or EIS was arbitrary for two additional reasons—the agencies had previously decided to prepare an EA and abandoned that plan, and they already prepared or were planning to prepare EAs for other national parks—but the court rejected both arguments. Because the agencies did not show that there was "at least a serious possibility" that they would be able to reach the same outcome on remand, the court vacated the plan and remanded to FAA. Two judges also ruled that NEPA's provisions provided no support for CEQ's authority to issue binding regulations, an argument that had not been presented by the parties.