D.C. Circuit Vacates Air Tour Management Plan Due to NEPA Concerns

Marin Audubon Soc'y v. Fed. Aviation Admin., 121 F.4th 902 (D.C. Cir. 2024)

The National Parks Air Tour Management Act governs commercial air tour operations over national parks.

On January 10, 2023, the Federal Aviation Administration (FAA) and the National Park Service (NPS) approved an Air Tour Management Plan (the “Plan”) under the National Parks Air Tour Management Act of 2000 (the “National Parks Air Tour Act”) for the Golden Gate National Recreation Area, Muir Woods National Monument, San Francisco Maritime National Historical Park, and Point Reyes National Seashore (the “National Parks”). 

On November 12, 2024, the D.C. Circuit of the United States Court of Appeals vacated the Plan and remanded the matter back to the FAA for further consideration.  The D.C. Circuit’s holding is significant not only for vacating the Plan but also for finding that the Council on Environmental Quality lacked the authority to issue binding regulations for federal agency implementation of NEPA.

Under the National Parks Air Tour Act, when a person applies for authority to conduct a commercial air tour operation over certain national parks, the FAA must establish an Air Tour Management Plan in cooperation with the NPS. 49 U.S.C. 40128.  An Air Tour Management Plan aims to “develop acceptable and effective measures to mitigate or prevent the significant adverse impacts, if any, of commercial air tour operations under the natural and cultural resources, visitor experiences, and tribal lands.” 49 U.S.C. 40128(b)(1)(B).  An Air Tour Management Plan may prohibit air tour operations over national parks altogether or impose lesser limitations, including restrictions on routes and number of flights. 49 U.S.C. 41028(b)(3)(B). 

The Act directs the FAA to make every effort to develop an Air Tour Management Plan within 24 months of receiving an application for commercial air tour operation authority.  While the application is pending, the FAA Administrator can grant interim operating authority to operators, allowing operators already conducting air tours to continue to do so during the establishment of a plan. 49 U.S.C. 40128(c).

In establishing the Air Tour Management Plan, the FAA and NPS must comply with the National Environmental Policy Act (NEPA). 49 U.S.C. 40128(b)(2).  For “major Federal actions significantly affecting the quality of the human environment,” NEPA requires a “detailed statement” assessing environmental impacts, including “reasonably foreseeable environmental effects of the proposed agency action,” “reasonably foreseeable adverse environmental effects,” and a “reasonable range of alternatives to the proposed agency action.” 42 U.S.C. 4332(2)(C). 

NEPA established the Council on Environmental Quality (CEQ) within the Executive Office of the President to “review and appraise” agency NEPA compliance, “make recommendations to the President with respect to [NEPA compliance], and “develop and recommend to the President national policies to foster and promote the improvement of environmental quality.”  Per Executive Order, NEPA directives were treated as regulations binding on federal agencies.  Such regulations allowed for NEPA compliance by invoking categorical exclusions of certain actions determined to have no significant environmental effects and, therefore, not requiring an environmental impact statement or an environmental assessment to determine if an impact statement was necessary.

In this case, the NPS and FAA issued the Plan without an environmental impact statement or assessment by finding that a categorical exclusion applied for “changes or amendments to an approved action when such changes would cause no or only minimal environmental impacts.” To reach this conclusion, the agencies relied upon CEQ regulations. Further, they determined that there would be no environmental impacts using a baseline of existing flights over the National Parks being operated under interim operating authority. 

The D.C. Circuit found that the CEQ regulations could not be legally binding on agencies, courts, and the public because the CEQ lacked authority from Congress to issue such binding rules.  While the D.C. Circuit left open the possibility that agencies could incorporate CEQ directives into their regulations, this was not the case here, where both the Department of Interior and the Department of Transportation treated CEQ regulations as binding law.

Further, the D.C. Circuit found that the NPS and FAA relied on an improper baseline for their environmental analysis by using the existing level of flights operated over the National Parks under interim operating authority to assess the Plan’s environmental impact.  According to the Court, by using such interim operations as the baseline, the agencies effectively “tilted the scales in a way that obscured the true environmental effects of the Plan.”