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 concern binding laws implementing the Nationwide Environmental Coverage Act (NEPA). As CEQ first issued such laws within the Seventies, and that such laws are sometimes the idea of NEPA fits towards 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 laws 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 get together to the case petitioned the D.C. Circuit to rehear the case en banc. Within the interim, President Trump issued an executive order directing CEQ to suggest rescinding its NEPA laws and revoking the Carter Administration’s EO that had directed the CEQ to concern such laws and directing businesses to conform.
As we speak, 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 beneath) appears designed to include Marin Audubon with out making a automobile for Supreme Court docket assessment. I doubt it would 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 concern laws (maybe as a result of the Carter EO directed federal businesses to adjust to these laws and Justice Division attorneys had been by no means instructed to problem whether or not violating such laws was correct grounds for a citizen go well with), the arguments that Congress by no means delegated such authority to CEQ are robust, and claims an company did not adjust to such laws shouldn’t be justiciable. (Whereas claims an company didn’t comply with its personal NEPA laws, would current a unique query.)
It’s value remembering that the Supreme Court docket is itself contemplating a NEPA case in the mean time, and whereas this query shouldn’t be earlier than the Court docket, it would certainly have reached their consideration. I might not be in any respect stunned had been a few of the justices to concur individually endorsing Choose Randolph’s panel opinion, in impact inviting further litigants to lift this declare in subsequent circumstances. The NEPA panorama has been completely altered.
UPDATE: The concurring assertion makes clear that the following time a NEPA case implicating CEQ’s laws will get to the D.C. Circuit, the courtroom is prone to disregard the Marin Audubon Society resolution as dicta (assuming, in fact, that the laws haven’t been rescinded by then). The result of any such resolution, nevertheless, is sort of sure Supreme Court docket assessment, and it might 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 beneath.
SRINIVASAN, Chief Choose, with whom Circuit Judges MILLETT, PILLARD, WILKINS, CHILDS, PAN, and GARCIA be a 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, during which the panel majority opined that the CEQ lacks authority to concern binding NEPA laws. As a result of no get together raised or briefed that concern, the panel majority’s engagement with it, in my opinion, ran afoul of the precept of get together 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 partly).
Whereas all events have agreed and urged the en banc courtroom to grant assessment 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 transient), see id. at 915–18, that means that the panel majority’s rejection of the CEQ’s authority to concern binding NEPA laws was pointless to the panel’s disposition, see id. at 921 (Srinivasan, C.J., dissenting partly). That conclusion in reality 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 a substitute offers an company the choice to depend on a categorical NEPA exclusion, see id. at 922 (Srinivasan, C.J., dissenting partly); Gov’t Pet. for Reh’g En Banc at 14, any conclusion that the CEQ lacks authority to concern binding laws would go away unaffected the businesses’ challenged selection 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 shouldn’t be essential to the disposition of the deserves”).
