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The battle over the Council on Environmental Quality’s (CEQ) authority to implement the National Environmental Policy Act (NEPA) continues to heat up. Last month, CEQ published an interim final rule ([link removed]) removing all iterations of its NEPA implementing regulations, including the Biden Administration’s Phase II rules, and a North Dakota district court cited Loper while rejecting CEQ’s authority.


** In a Loper Bright Landscape, North Dakota District Court Rejects CEQ’s Attempt to Issue Binding Legislative Rules ([link removed])
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AFP Foundation’s Michael Pepson ([link removed]) explains Iowa v. Council on Environmental Quality ([link removed]) , which cited the Supreme Court’s landmark decision in Loper Bright. In that case, a North Dakota district court rejected CEQ’s claimed power to issue binding government-wide NEPA regulations at all:

“Second, the district court cited Loper Bright in rejecting CEQ’s alternate request for deference to its interpretation of NEPA under Andrus v. Sierra Club, a 1979 pre-Chevron case in which the Supreme Court remarked in dicta that “CEQ’s interpretation of NEPA is entitled to substantial deference.” The district court explained: “Andrus was a precursor to Chevron and followed much of the same process and reasoning. Whatever deference the Supreme Court assigned to CEQ in Andrus is subject to the same standard of review outlined in Loper Bright” and thus “[t]he Court is not required to give deference to CEQ interpretations.” Quoting Loper Bright, the district court also noted that “‘[E]very statute’s meaning is fixed at the time of enactment.’” In other words, the meaning of a statute can’t evolve or change over time, as CEQ’s 2024 regulation would have it.”
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** Early Returns on Loper and Labor Law ([link removed])
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AFP Foundation’s Lee A. Steven ([link removed]) writes on how two federal courts in Texas have applied Loper to overturn two Department of Labor regulations:

“In Restaurant Law Center v. U.S. Department of Labor ([link removed]) (5th Cir. 2024), the Fifth Circuit overruled the lower court, which had upheld as lawful a 2021 Department of Labor rule that restricted when employers may claim a “tip credit” for “tipped employees” under the Fair Labor Standards Act.”

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The second case, Texas v. U.S. Department of Labor ([link removed]) , is a district court case from the Eastern District of Texas. In this matter, the State of Texas and several trade associations and employers challenged a Department of Labor rule that raised the minimum salary threshold at which executive, administrative, and professional (EAP) employees are exempt from overtime pay under the Fair Labor Standards Act…the court vacated the rule in its entirety. The Department of Labor appealed the decision and the parties are currently briefing the case before the Fifth Circuit.”
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