A Federal Court Just Upended Decades of Environmental Regulation

Complicating matters is that the Supreme Court itself has upheld these regulations from time to time, operating under the presumption that CEQ had the lawful authority to issue them. In one case, for example, the justices said outright that CEQ had been “established by NEPA with authority to issue regulations interpreting it.” Judges in the lower federal courts are bound by Supreme Court precedent at all times.

This time, however, the panel majority concluded it was not bound by this description or other stray remarks in the high court’s rulings over the years. “The statement appeared without any accompanying legal analysis,” the panel noted, quoting from past rulings. “We must obey ‘carefully considered language of the Supreme Court, even if technically dictum.’ But we are not bound by every stray remark on an issue the parties [in those cases] neither raised nor discussed in any meaningful way.” In other words, because the Supreme Court had never directly considered CEQ’s authority, the panel was not bound by its assumption that it existed.

Judge Sri Srinivasan, who dissented in part from the court’s ruling, criticized his colleagues for ruling on CEQ’s authority even though no party had asked for it. He pointed to a doctrine known as the party-presentation principle, which generally holds that judges are only supposed to decide legal questions that are raised by litigants and briefed and argued by them. “Time and again, we have refrained from questioning the CEQ’s authority to adopt binding NEPA regulations because the parties did not raise the challenge,” he noted, pointing to past D.C. Circuit cases where they had assumed CEQ’s authority was valid.