D.C. Circuit Declines to Reconsider Decision Concluding CEQ Lacks Authority to Issue NEPA Regulations
Last November, in Marin Audubon Society v. Federal Aviation Administration, a divided panel of the U.S. Court of Appeals for the D.C. Circuit concluded that the Council on Environmental Quality lacked the statutory authority to issue binding regulations implementing the National Environmental Policy Act (NEPA). As CEQ first issued such regulations in the 1970s, and that such regulations are often the basis of NEPA suits against federal agencies, the decision was a big deal.
The opinion, by Senior Judge Randolph (joined by Chief Judge Henderson) explained why the text of NEPA should not be read to confer any such authority. Accordingly, the panel majority concluded, federal agencies are only obligated to comply with NEPA itself, and any regulations they may have adopted on their own to implement NEPA’s requirements.
Judge Srinivasan dissented, largely on the grounds that the question of CEQ’s statutory authority was not properly before the court (as it had not been briefed) and was not necessary to resolve the question presented to the court.
Every party to the case petitioned the D.C. Circuit to rehear the case en banc. In the interim, President Trump issued an executive order directing CEQ to propose rescinding its NEPA regulations and revoking the Carter Administration’s EO that had directed the CEQ to issue such regulations and directing agencies to comply.
Today, the D.C. Circuit denied the petition, but Judge Srinivasan wrote an opinion respecting the denial of en banc th
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