COMMENTS
55 ELR 10370 ENVIRONMENTAL LAW REPORTER JULY/AUGUST 2025
SEPARATING HOLDING FROM DICTA:
MARIN AUDUBON V. FAA
by Justin L. McCarthy
Justin L. McCarthy is a 2025 graduate of the University of Oregon School of Law.
For more than 40 years, the White House Council on
Environmental Quality’s (CEQ’s) regulations imple-
menting the National Environmental Policy Act
(NEPA) were universally regarded as “the bible for the fed-
eral establishment and for the review ing courts.”1 Indeed,
in Andrus v. Sierra Club, the U.S. Supreme Court stated
that “CEQ’s interpretation of NEPA is entitled to substan-
tial deference.”2 In late 2024, however, in Marin Audubon
Society v. Federal Aviation Administration, a divided panel
for the U.S. Court of Appeals for the District of Colum-
bia (D.C.) Circuit cast signicant doubt on the continued
durability of CEQ’s NEPA regulations, stating that the
agency lacked the authority to issue binding reg ulations
governing federal agencies’ compliance with NEPA.3
Although the D.C. Circuit’s decision gained national
attention a mong envi ronmental law practitioners, 4 this
1. Richard Lazarus, e National Environmental Policy Act in the U.S. Supreme
Court: A Reappraisal and Peek Behind the Curtains, 100 G. L.J. 1507,
1518 (2012) (quoting Oliver A. Houck, Book Review, Is at All? A Re-
view of e National Environmental Policy Act, An Agenda for the Future,
by Lynton Keith Caldwell, 11 D E’ L. P’ F. 173, 183 n.38
(2000)).
2. 442 U.S. 347, 358 (1979).
3. 121 F.4th 902, 908 (D.C. Cir. 2024). In February 2025, a North Dakota
district court in Iowa v. Council on Environmental Quality, No. 24-cv-
00089, 2025 WL 598928 (D.N.D. Feb. 3, 2025), held that NEPA did not
give CEQ authority to issue binding regulations. at case is currently on
appeal to the U.S. Court of Appeals for the Eighth Circuit and is beyond
the scope of this Comment.
4. See, e.g., Peter Whiteld et al., D.C. Circuit Answers Unasked Question to
Invalidate 50 Years of Environmental Regulatory Framework as Ultra Vires,
S A LLP (Nov. 13, 2024), https://www.sidley.com/en/insights/
newsupdates/2024/11/dc-court-of-appeals-answers-unasked-question-to-
invalidate-50-years-of-environmental-regulatory; Laura C. Williams et al.,
DC Circuit Issues Landmark Ruling Holding CEQ Lacks Authority to Issue
NEPA Regulations, M L (Nov. 13, 2024), https://www.morgan-
lewis.com/pubs/2024/11/dc-circuit-issues-landmark-ruling-holding-ceq-
lacks-authority-to-issue-nepa-regulations; Michael R. Pincus et al., D.C.
Circuit rows Out Over 40 Years of NEPA Regulation, V N F
LLP (Nov. 14, 2024), https://www.vnf.com/dc-circuit-throws-out-over-
40-years-of-nepa-regulation; Sarah Bordelon et al., Marin Audubon Should
Not Upend the NEPA Process, H H LLP (Nov. 14, 2024),
https://www.hollandhart.com/marin-audubon-should-not-upend-the-ne-
pa-process; Donald F. McGahn et al., D.C. Circuit Finds Council on Environ-
mental Quality’s NEPA Regulations Are Unenforceable, J D (Nov. 15,
2024), https://www.jonesday.com/en/insights/2024/11/dc-circuit-nds-
council-on-environmental-quality-nepa-regulations-are-unenforceable;
Kristin Watt et al., D.C. Circuit Issues Ruling at Could Aect NEPA Com-
pliance, V S S P LLP (Nov. 20, 2024), https://www.
Comment argues that on closer examination of the court’s
legal reasoning, t hese sweeping statements concerning
CEQ’s regulatory authority actually amount to nonbind-
ing dicta. It further argues that even if these statements
were not dicta, the Marin Audubon decision suer s from
multiple errors in reasoning. Specically, the Marin
Audubon court erred in t hree ways: (1)it disregarded the
Supreme Court’s well-considered dicta on the issue; (2)it
failed to consider whether NEPA contains an implied del-
egation of rulemaking authority; and (3) it erroneously
found that CEQ’s regulations were not a valid delegation
of presidential authority under the Take Care Clause of the
U.S. Constitution.
I. NEPA and CEQ’s Regulatory History
NEPA was passed by the U.S. Congress in 1969 and signed
into law by President Richard Nixon in 1970 amid growing
public concern about environmental degradation.5 Such
highly visible environmental disasters as the 1969 Santa
Barbara oil spill and the repeated res on the Cuyahoga
River, which had become heavily polluted by industrial
waste, galvanized public support for comprehensive envi-
ronmental regulation.6
Often referred to as the “Magna Carta” of environ-
mental laws, NEPA’s §101 establishes a national policy
“to use all practicable means and measures .. . to foster
and promote the general welfare, to create and maintain
conditions under which man and nature can exist in pro-
vorys.com/publication-d-c-circuit-issues-ruling-that-could-aect-nepa-
compliance; Ana D. Schwab et al., Split D.C. Circuit Panel Holds at CEQ
Lacks Authority to Issue NEPA Regulations, B B K LLP (Nov.
21, 2024), https://bbklaw.com/resources/la-112124-split-dc-circuit-panel-
holds-that-ceq-lacks-authority-to-issue-nepa-reg; Jay C. Johnson, Whither
the Council on Environmental Quality NEPA Regulations? A Clear-Eyed Per-
spective, V LLP (Nov. 25, 2024), https://www.venable.com/insights/
publications/2024/11/whither-the-council-on-environmental-quality.
5. 42 U.S.C. §§4321-4370m-12.
6. Jon Hamilton, How California’s Worst Oil Spill Turned Beaches Black and
the Nation Green, NPR ( Jan. 28, 2019), https://www.npr.org/2019/01/
28/688219307/how-californias-worst-oil-spill-turned-beaches-black-and-
the-nation-green; Lorraine Boissoneault, e Cuyahoga River Caught
Fire at Least a Dozen Times, but No One Cared Until 1969, S-
M. (June 19, 2019), https://www.smithsonianmag.com/his-
tory/cuyahoga-river-caught-fire-least-dozen-times-no-one-cared-until-
1969-180972444/ (“Despite being much smaller than previous res, the
river blaze in Cleveland [in 1969] ... became a symbol for the nascent
environmental movement[.]”).
Author’s Note: The author would like to thank Prof. Mary
Wood for her support and detailed feedback on previous
drafts of this Comment.
Copyright © 2025 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org
