The Volokh Conspiracy
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D.C. Circuit Declines to Reconsider Decision Concluding CEQ Lacks Authority to Issue NEPA Regulations
A majority of the en banc court instead seeks to explain away the panel's conclusion as dicta. Will the Supreme Court agree?
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 that was joined by a majority of judges on the court. This opinion (reproduced below) seems designed to contain Marin Audubon without creating a vehicle for Supreme Court review. I doubt it will have that effect, however.
The Supreme Court has made very clear that courts are to scrutinize agency assertions of regulatory authority. While few litigants have challenged CEQ's authority to issue regulations (perhaps because the Carter EO directed federal agencies to comply with those regulations and Justice Department attorneys were never instructed to challenge whether violating such regulations was proper grounds for a citizen suit), the arguments that Congress never delegated such authority to CEQ are strong, and claims an agency failed to comply with such regulations should not be justiciable. (Whereas claims an agency did not follow its own NEPA regulations, would present a different question.)
It is worth remembering that the Supreme Court is itself considering a NEPA case at the moment, and while this question is not before the Court, it will surely have reached their attention. I would not be at all surprised were some of the justices to concur separately endorsing Judge Randolph's panel opinion, in effect inviting additional litigants to raise this claim in subsequent cases. The NEPA landscape has been permanently altered.
UPDATE: The concurring statement makes clear that the next time a NEPA case implicating CEQ's regulations gets to the D.C. Circuit, the court is likely to disregard the Marin Audubon Society decision as dicta (assuming, of course, that the regulations have not been rescinded by then). The outcome of any such decision, however, is almost certain Supreme Court review, and it would be quite surprising were a majority of justices to disagree with Judge Randolph's analysis.
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The Srinivasan opinion respecting the denial of en banc reconsideration is below.
SRINIVASAN, Chief Judge, with whom Circuit Judges MILLETT, PILLARD, WILKINS, CHILDS, PAN, and GARCIA join, concurring in the denial of rehearing en banc:
All parties have sought en banc rehearing with respect to Part II of the panel opinion, in which the panel majority opined that the CEQ lacks authority to issue binding NEPA regulations. Because no party raised or briefed that issue, the panel majority's engagement with it, in my view, ran afoul of the principle of party 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 in part).
While all parties have agreed and urged the en banc court to grant review and excise that part of the panel's opinion, I concur in the denial of en banc rehearing. The panel unanimously ruled in favor of the challenge in this case on an entirely separate ground (one that the parties did raise and brief), see id. at 915–18, meaning that the panel majority's rejection of the CEQ's authority to issue binding NEPA regulations was unnecessary to the panel's disposition, see id. at 921 (Srinivasan, C.J., dissenting in part). That conclusion in fact could not independently support the panel's disposition to set aside the agencies' challenged action: because the relevant CEQ regulation does not require an agency to do anything but instead gives an agency the option to rely on a categorical NEPA exclusion, see id. at 922 (Srinivasan, C.J., dissenting in part); Gov't Pet. for Reh'g En Banc at 14, any conclusion that the CEQ lacks authority to issue binding regulations would leave unaffected the agencies' challenged choice here to make use of a categorical exclusion. In these circumstances, there is no cause 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 in the denial of rehearing en banc) ("declin[ing] to en banc this 2 case" because "the panel's discussion of [the relevant] question is not necessary to the disposition of the merits").
