Earlier this week, the Court of Appeals for the District of Columbia ruled that the National Environmental Policy Act does not authorize the Council on Environmental Quality to issue binding regulations governing how federal agencies must implement NEPA. I would say that the decision came out of left field, but I think in this case, we have to acknowledge that the decision, in fact, came out of right field. And the question of the day is how much this decision should be taken as further evidence that our current judiciary has the administrative state firmly in its sights.
The decision is remarkable for several reasons, the first of which is that not only did neither party raise the issue, but the court decided it without even asking for a briefing from the parties. Moreover, not only did the Court decide an issue that neither party asked the Court to decide, but it also ignored prior D.C. Circuit opinions...
