Final November, in Marin Audubon Society v. Federal Aviation Administration, a divided panel of the U.S. Court docket of Appeals for the D.C. Circuit concluded that the Council on Environmental High quality lacked the statutory authority to situation binding rules implementing the Nationwide Environmental Coverage Act (NEPA). As CEQ first issued such rules within the Seventies, and that such rules are sometimes the premise of NEPA fits in opposition to federal businesses, the choice was a giant deal.
The opinion, by Senior Choose Randolph (joined by Chief Choose Henderson) defined why the textual content of NEPA shouldn’t be learn to confer any such authority. Accordingly, the panel majority concluded, federal businesses are solely obligated to adjust to NEPA itself, and any rules they could have adopted on their very own to implement NEPA’s necessities.
Choose Srinivasan dissented, largely on the grounds that the query of CEQ’s statutory authority was not correctly earlier than the courtroom (because it had not been briefed) and was not essential to resolve the query offered to the courtroom.
Each social gathering to the case petitioned the D.C. Circuit to rehear the case en banc. Within the interim, President Trump issued an govt order directing CEQ to suggest rescinding its NEPA rules and revoking the Carter Administration’s EO that had directed the CEQ to situation such rules and directing businesses to conform.
In the present day, the D.C. Circuit denied the petition, however Choose Srinivasan wrote an opinion respecting the denial of en banc that was joined by a majority of judges on the courtroom. This opinion (reproduced under) appears designed to comprise Marin Audubon with out making a car for Supreme Court docket overview. I doubt it’s going to have that impact, nevertheless.
The Supreme Court docket has made very clear that courts are to scrutinize company assertions of regulatory authority. Whereas few litigants have challenged CEQ’s authority to situation rules (maybe as a result of the Carter EO directed federal businesses to adjust to these rules and Justice Division attorneys had been by no means instructed to problem whether or not violating such rules was correct grounds for a citizen go well with), the arguments that Congress by no means delegated such authority to CEQ are sturdy, and claims an company did not adjust to such rules shouldn’t be justiciable. (Whereas claims an company didn’t comply with its personal NEPA rules, would current a distinct query.)
It’s price remembering that the Supreme Court docket is itself contemplating a NEPA case for the time being, and whereas this query is just not earlier than the Court docket, it’s going to certainly have reached their consideration. I might not be in any respect stunned had been a number of the justices to concur individually endorsing Choose Randolph’s panel opinion, in impact inviting further litigants to boost this declare in subsequent circumstances. The NEPA panorama has been completely altered.
UPDATE: The concurring assertion makes clear that the subsequent time a NEPA case implicating CEQ’s rules will get to the D.C. Circuit, the courtroom is prone to disregard the Marin Audubon Society determination as dicta (assuming, after all, that the rules haven’t been rescinded by then). The end result of any such determination, nevertheless, is sort of sure Supreme Court docket overview, and it will be fairly stunning had been a majority of justices to disagree with Choose Randolph’s evaluation.
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The Srinivasan opinion respecting the denial of en banc reconsideration is under.
SRINIVASAN, Chief Choose, with whom Circuit Judges MILLETT, PILLARD, WILKINS, CHILDS, PAN, and GARCIA be part of, concurring within the denial of rehearing en banc:
All events have sought en banc rehearing with respect to Half II of the panel opinion, by which the panel majority opined that the CEQ lacks authority to situation binding NEPA rules. As a result of no social gathering raised or briefed that situation, the panel majority’s engagement with it, in my opinion, ran afoul of the precept of social gathering presentation. See United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020); Marin Audubon Soc’y v. FAA, 121 F.4th 902, 920–22 (D.C. Cir. 2024) (Srinivasan, C.J., dissenting partially).
Whereas all events have agreed and urged the en banc courtroom to grant overview and excise that a part of the panel’s opinion, I concur within the denial of en banc rehearing. The panel unanimously dominated in favor of the problem on this case on a completely separate floor (one which the events did increase and temporary), see id. at 915–18, which means that the panel majority’s rejection of the CEQ’s authority to situation binding NEPA rules was pointless to the panel’s disposition, see id. at 921 (Srinivasan, C.J., dissenting partially). That conclusion in actual fact couldn’t independently assist the panel’s disposition to put aside the businesses’ challenged motion: as a result of the related CEQ regulation doesn’t require an company to do something however as an alternative offers an company the choice to depend on a categorical NEPA exclusion, see id. at 922 (Srinivasan, C.J., dissenting partially); Gov’t Pet. for Reh’g En Banc at 14, any conclusion that the CEQ lacks authority to situation binding rules would depart unaffected the businesses’ challenged alternative right here to utilize a categorical exclusion. In these circumstances, there isn’t any trigger to grant en banc rehearing. See Al-Bihani v. Obama, 619 F.3d 1, 1 (D.C. Cir. 2010) (Sentelle, C.J., and Ginsburg, Henderson, Rogers, Tatel, Garland, & Griffith, JJ., concurring within the denial of rehearing en banc) (“declin[ing] to en banc this 2 case” as a result of “the panel’s dialogue of [the relevant] query is just not essential to the disposition of the deserves”).
