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.
