Last fall, 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 lacks statutory authority to issue binding regulations implementing and interpreting the National Environmental Policy Act.
Last month, the full court denied a petition for en banc review in the case, while a majority of judges on the court joined an opinion suggesting the above holding was merely dicta.
Today, the original panel granted a stay of the judgment in the case (having previously denied the petitioners request for remand without vacatur). Writing for the panel, Judge Randolph explained that in cases like this, in which the party challenging a government regulation for being too lax as opposed to too stringent, a stay may be justified so as not to leave the petitioner in worse condition than before filing suit. In such cases, Judge Randolph explained, equitable considerations may justify a stay without compromising the effect of the court's conclusion that the agency action was unlawful.
