The fate of a shocking decision from a powerful federal appeals court invalidating the White House’s power to set rules on environmental reviews will likely hinge on one key variable — the Trump administration’s motivation to fight the ruling on appeal.
While the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday technically sided with a conservation group’s challenge against the federal government’s National Environmental Policy Act review of tour flights over national parks in California, two of the three judges who decided the case also unexpectedly decided that the White House Council on Environmental Quality has no power to issue regulations instructing federal agencies on how to implement the law.
At a different time, an appeal from the federal government might have been a foregone conclusion, said Kevin Minoli, a partner at the law firm Alston & Bird. But it’s possible that President-elect Donald Trump — who retakes the White House in just under 70 days — will want to keep the ruling about CEQ’s power intact.
“It’s the sort of decision that if we were in a typical time 20 years ago, there would be en banc review, and it would likely be overturned by the full court of appeals,” said Minoli, former EPA acting general counsel who advised Trump’s first presidential transition. “We’re not in a normal time.”
