North Dakota federal judge axes environmental rule

The William L. Guy Federal Building pictured on Dec. 18, 2024, in Bismarck, N.D. (Michael Achterling/North Dakota Monitor)

A North Dakota federal judge on Monday delivered the latest blow to the federal Council on Environmental Quality, finding that the agency for decades has exercised regulatory authority it doesn’t actually have.

U.S. District Court Judge Dan Traynor in an order concluded that the council, established by Congress in 1969, was created to be an advisory body and cannot issue rules. He struck down a 2024 regulation adopted by the council that amends the environmental review process for projects the federal government funds and permits, including pipelines, highways, airports and other infrastructure.

Traynor did not strike down other rules issued by the council, though he noted they are likely also unlawful.

The council issued its first regulations in the late 1970s, after President Jimmy Carter issued an executive order directing the agency to implement the National Environmental Policy Act. The law requires agencies to conduct environmental reviews of certain federal projects.

By and large, federal courts did not question the council’s regulatory authority until late last year, when the U.S. Court of Appeals for the D.C. Circuit in a curveball decision found that the agency has no power to make rules.

Traynor on Monday agreed with the circuit court.

“The truth is that for the past 40 years all three branches of government operated under the erroneous assumption that CEQ had authority,” he wrote. “But now everyone knows the state of the emperor’s clothing and it is something we cannot unsee.”

The ruling also follows a January executive order by President Donald Trump rescinding the council’s rulemaking authority and directing the council to roll back its regulations.

Traynor’s order came as part of a lawsuit filed against the council by 21 Republican-led states, including North Dakota, which argued the 2024 rule introduced onerous and unnecessary requirements that would hurt important infrastructure projects. The states also claimed the rules unlawfully over-emphasized climate change and environmental justice in the environmental review process.

Plaintiff states didn’t ask for all of the agency’s regulations to be thrown out, just the 2024 rule.

“This decision is great for North Dakota, but also great for economic and infrastructure development around the entire country,” North Dakota Attorney General Drew Wrigley said in a Tuesday statement on the ruling.

A group of 13 other states, plus the District of Columbia, New York City and a handful of advocacy groups joined the case on the side of the Council on Environmental Quality.

The defendants argued the council’s work is vital to implement the National Environmental Policy Act, and to protect the environment and public health. They claim the 2024 rule replaced a weak regulation adopted in 2020 by the first Trump administration.

In rescinding the 2024 rule, Traynor’s ruling reinstates the 2020 rule.

The council and co-defendants also argued that if Congress had a problem with the agency issuing rules, it could have passed a law clarifying this at any point during the last several decades.

Traynor wrote that if that is true, then Congress still needs to pass legislation formally giving the council this authority. He said the agency made compliance with the National Environmental Policy Act much more cumbersome than the legislative branch intended.

“Congress did not tell CEQ to be hall monitors constantly requiring agencies to prove they have considered the environment,” he wrote.

Traynor also criticized the federal government more broadly for what he called a “disheveled hodgepodge of law surrounding administrative agencies and executive orders.”

“Power can be taken by force, given, or lost inch by inch,” he wrote. “It is the job of Congress to enact the law. It is the job of the President to enforce the law. It is the job of the Judiciary to determine the boundaries of the law.”

In a Tuesday news release, Earthjustice — an environmental law group that represented  co-defendants in the case — said Traynor’s order strips away one of the country’s most important environmental regulations.

“The court’s ruling will weaken environmental reviews and will further harm communities already struggling with polluted land, air, and water,” Jan Hasselman, attorney for Earthjustice, said in the announcement.

Hasselman said Traynor’s order should also be taken as a warning against the Trump administration’s other executive orders rolling back environmental regulations.

“According to this court decision, many of Trump’s actions are also illegal,” Hasselman said.

The 21 plaintiff states are Iowa, North Dakota, South Dakota, Kentucky, Utah, Idaho, Wyoming, South Carolina, Kansas, Virginia, West Virginia, Tennessee, Arkansas, Florida, Georgia, Louisiana, Missouri, Montana, Nebraska, Texas and Alaska.

The 13 states that joined the defense as intervenors are California, Oregon, Washington, Massachusetts, Colorado, Michigan, Illinois, Maine, Maryland, New Jersey, New Mexico, New York and Wisconsin.

This story was originally produced by the North Dakota Monitor which is part of States Newsroom, a nonprofit news network, including the Daily Montanan, supported by grants and a coalition of donors as a 501c(3) public charity.