MARIN AUDUBON SOCIETY, ET AL., PETITIONERS v. FEDERAL AVIATION ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION AND NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE INTERIOR, RESPONDENTS
No. 23-1067
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 19, 2024 Decided November 12, 2024
Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit Judge, and RANDOLPH, Senior Circuit Judge.
On Petition for Review of an Order of the Federal Aviation Administration
Justin D. Heminger, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Todd Kim, Assistant Attorney General, and Robert P. Stockman, Attorney.
Opinion for the Court filed by Senior Circuit Judge RANDOLPH with respect to Parts II and IV.
Concurring opinion filed by Senior Circuit Judge RANDOLPH with respect to Part IV.
Dissenting opinion filed by Chief Judge SRINIVASAN with respect to Parts II and IV.
I.
The Federal Aviation Administration is an agency within the Department of Transportation. The National Park Service is an agency within the Department of the Interior. The
To that end, the Agencies issued an Air Tour Management Plan governing tourist flights over four national parks near San Francisco, California: the Golden Gate National Recreation Area, Muir Woods National Monument, San Franсisco Maritime National Historical Park, and Point Reyes National Seashore. The Agencies determined that there was no need to prepare an environmental analysis under the
A.
The National Parks Act requires commercial air operators to obtain approval from the FAA before conducting tourist flights over a national park.
“The objective of any [Plan] shall be to develop acceptable and effective measures to mitigate or prevent the significant adverse impacts, if any, of commercial air tour operations upon the natural and cultural resources, visitor experiences, and tribal lands.”
The Parks Act specifies that the FAA “shall make every effort to act on any [commercial air tour operator‘s] application . . . and issue a decision on the application not later than 24 months after it is received or amended.”
The Parks Act also allows the Agencies to enter into voluntary agreements with tour operators in lieu of establishing a Plan.
B.
NEPA requires federal agencies to prepare “a detailed statement” assessing the environmental impacts of all “major Federal actions significantly affecting the quality of the human environment.”
The detailed environmental impact statement must analyze the “environmental impact of the proposed action,” any unavoidable “adverse environmental effects” of the action, and potential alternatives to the action.
According to regulations issued by the Council on Environmental Quality—about which more later—if the proposed action “[i]s not likely to have significant [environmental] effects or the significance of the effects is unknown,” then the agency can prepare an environmental assessment.
CEQ regulations also state that the agency may forgo preparing an environmental impact statement or an environmental assessment if the proposed action is “categorically excluded” from NEPA‘s usual requirements because it “[n]ormally does not have significant effects” on the environment.
C.
Congress, as noted, directed these Agencies to “make every effort” to complete a Plan within twenty-four months of an air tour operator‘s application.
Because of the Agencies’ inaction, our court granted a petition for a writ of mandamus to compel the Agencies to bring all twenty-three parks with pending applications—including the four parks at issue in this case—into compliance with the Act. Id. at 275. Our court also retained jurisdiction to monitor the Agencies’ progress. Id. at 275–76.
That is because the Agencies halted the process for developing Plans and environmental assessments/environmental impact statements at ten parks—including the Bay Area Parks—after Congress amended the Parks Act in 2012. Termination of Previously Initiated Processes for the Development of Air Tour Management Plans and Environmental Assessments/Environmental Impact Statements for Various National Park Units, 85 Fed. Reg. 55,060, 55,060 (Sept. 3, 2020). The Agencies then formally “terminat[ed]” those processes in September 2020.
Upon restarting the Plan process, the Agencies decided to prepare a single Plan for all four Bay Area Parks. They did so because of the “close proximity of the parks, including shared borders,” and “the fact that the same operators conducted tours over” three of the parks, with some routes “overfl[ying] multiple parks.” U.S. Dep‘t of Transp., Fed. Aviation Admin. & U.S. Dep‘t of the Interior, Nat‘l Park Serv., Record of Decision: Air Tour Management Plan for Golden Gate National Recreational Area, Muir Woods National Monument, San Francisco Maritime
For purposes of their NEPA analysis, the Agencies used existing air tours to determine the environmental baseline against which they would assess the Plan‘s environmental impact. At the time, twо companies possessed interim operating authority to conduct flights over the Bay Area Parks. On paper, those operators together had authority to conduct 5,090 tours per year over the four Parks. Fewer flights were actually flown, however, and the Agencies decided to use the average annual number of actual flights to identify the baseline existing condition. The Agencies calculated that the operators conducted an annual average of 2,548 tours over Golden Gate and San Francisco Maritime from 2017 to 2019, and that 143 of those tours also flew over or close to Point Reyes. The Agencies treated that average volume as the existing environmental condition of the Bay Area Parks.
The final Bay Area Parks Plan authorizes maintaining that “existing condition,” albeit “with measures designed to mitigate impacts [of the flights] on the Parks’ resources and visitor experience.” Record of Decision at 7. Thus, the Plan authorizes 2,548 tours over Golden Gate and San Francisco Maritime, 143 of which may also fly over Point Reyes, but with certain limitations. For example, the Plan specifies the kinds of aircraft operators сan use, imposes daily flight caps, and alters existing routes and schedules to avoid disturbing wildlife and impinging on visitors’ aesthetic experiences.
The Agencies concluded that they did not need to prepare an environmental assessment or environmental impact statement for “[c]hanges or amendments to an approved action when such changes would cause no or only minimal environmental impacts.” Record of Decision at 8. The Agencies determined that the “impacts
In light of that conclusion, the Agencies finalized the Bay Area Parks Plan without completing any environmental assessment or environmental impact statement. Record of Decision, supra, at 9, 20–21; Record of Decision, supra, app. C (Categorical Exclusion Documentation Form) at 13–17.
The Record of Decision for the Plan was a final order of the FAA, which we have jurisdiction to review.
II.
As the parties argue the case, it centers on whether the Agencies complied with regulations of the Council on Environmental Quality, an entity within the Executive Office of the President. We will not address these arguments. The CEQ regulations, which purport to govern how all federal agencies must comply with the National Environmental Policy Act, are ultra vires.
CEQ traces its rulemaking authority not to legislation but to an Executive Order of the President. But “an executive order is not ‘law’ within the meaning of the Constitution.” California v. EPA, 72 F.4th 308, 318 (2023). The Supreme Court, in one of its most significant separation of powers decisions, ruled that the Constitution does not permit the President to seize for himself the “law-making power of Congress” by issuing an order that, “like a statute, authorizes a government official to
Yet both sides in this case took for granted CEQ‘s authority to issue binding NEPA regulations. Although questions about this were raised at oral argument, no party sought leave to file a post-argument brief. That is understandable. Petitioners claimed that the Agencies violated CEQ regulаtions; the Agencies denied the charge and defended by invoking CEQ regulations.
Despite the parties’ acquiescence in CEQ‘s regulatory authority, we “retain[] the independent power to identify and apply the proper construction of governing law,” and that is especially true when “the proper construction is that a law does not govern because it is not in force” or is not legally binding. U.S. Nat‘l Bank v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993) (first excerpt quoting Kamen v. Kemper Fin. Serv., Inc., 500 U.S. 90, 99 (1991)). Here, CEQ‘s authority to issue regulations on the basis of an Executive Order raises what is essentially a “separation of powers” issue. Mexichem Fluor, Inc. v. EPA, 866 F.3d 451, 453 (D.C. Cir. 2017) (Kavanaugh, J.). “To the extent that this structural principle is implicated in a given case, the parties cannot by consent cure the constitutional difficulty for the same reason that the parties by consent cannot confer on federal courts subject-matter jurisdiction beyond the limitations imposed by Article III . . . .” Commodity Futures Trading Comm‘n v. Schor, 478 U.S. 833, 850 (1986); see also Freytag v. Commissioner, 501 U.S. 868, 878–89 (1991); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 232 (1995); Bahlul v. United States, 840 F.3d 757, 760 n.1 (D.C. Cir. 2016) (en banc) (Kavanaugh, J., concurring).
There are good reasons, indeed there are compelling reasons, for us to determine the validity of the CEQ regulations once and for all. Over many years, our court has expressed serious concerns about whether CEQ‘s regulations had any “binding effect” because it was “far from clear” that CEQ hаd any “regulatory authority under [NEPA].” Nevada v. Dep‘t of Energy, 457 F.3d 78, 87 n.5 (D.C. Cir. 2006) (quoting TOMAC v. Norton, 433 F.3d 852, 861 (D.C. Cir. 2006); City of Alexandria v. Slater, 198 F.3d 862, 866 n.3 (D.C. Cir. 1999)); see also Grand Canyon Tr. v. FAA, 290 F.3d 339, 341 n.* (D.C. Cir. 2002); Food & Water Watch v. U.S. Dep‘t of Agric., 1 F.4th 1112, 1118 (D.C. Cir. 2021) (Randolph, J., concurring). It is time for our court‘s long-standing misgivings to be put to the test: “where there is so much smoke, there must be a fair amount of fire, and we would do well to analyze the causes.” Henry J. Friendly, A Look at the Federal Administrative Agencies, 60 Colum. L. Rev. 429, 432 (1960).
A.
The National Environmental Policy Act of 1969 required each federal agency to issue a “detailed statement” addressing the environmental impact of any proposed “major Federal
In 1970, President Nixon issued an Executive Order instructing CEQ to “[i]ssue guidelines to Federal agencies for the preparation of” the “detailed statements” NEPA required. Exec. Order No. 11514, § 3(h), 35 Fed. Reg. 4247, 4248 (Mar. 7, 1970). In response, CEQ published a “memorandum” containing “guidelines” for federal agencies considering environmental impact statements. 36 Fed. Reg. 7724, 7724 (Apr. 23, 1971).
At the time, several courts concluded that CEQ‘s role was “merely advisory” because it lacked any “authority to prescribe regulations governing compliance with NEPA.” Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 424 (5th Cir. 1973) (citing Greene Cnty. Planning Bd. v. Fed. Power Comm‘n, 455 F.2d 412, 421 (2d Cir. 1972)). These courts and others therefore viewed CEQ‘s guidelines as non-binding suggestions to assist agencies in developing their own NEPA procedures. See Aertsen v. Landrieu, 637 F.2d 12, 17 (1st Cir. 1980); Nat‘l Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971).
CEQ held a quite different view. It considered its guidelines to be mandatory, “non-discretionary standards for
When the case reached the Supreme Court, the Solicitor General—in a quasi-confession of error—advised the Cоurt that CEQ‘s guidelines were not mandatory and “do not bind agencies of the Executive branch.” Brief for the Petitioners at 31 n.24, Kleppe v. Sierra Club, 427 U.S. 390 (1976) (Nos. 75-552 & 75-561). As a result, the Supreme Court‘s Kleppe v. Sierra Club opinion, which reversed the D.C. Circuit, made no mention of CEQ or its guidelines.
In 1977, President Carter took office and issued Executive Order 11991, 42 Fed. Reg. 26,967 (May 25, 1977), apparently in response to the Solicitor General‘s position in the Kleppe Supreme Court case. President Carter‘s Executive Order was meant to empower CEQ to issue “regulations,” rather than “guidelines,” “to Federal agencies for the implementation of the procedural provisions of [NEPA].”
In compliance with President Carter‘s Executive Order, CEQ issued what amounted to a massive new body of law “binding on all Federal agencies,” the federal courts, and the non-federal litigants in NEPA cases and setting forth “uniform standards applicable throughout the Federal government.” 43 Fed. Reg. 55,978–79 (Nov. 29, 1978). In its initial foray, CEQ issued ninety-two NEPA mandatory regulations, many with numerous subparts containing extensive detailed and intricate explanations and directives. CEQ‘s 1978 regulations replaced “some seventy different sets of agency regulations,” leaving the other Executive and independent agencies with only the residual authority to “issue implementing procedures” for applying CEQ‘s mandates.
Those original CEQ regulations erected a framework that largely remains in effect to this day. The regulations described the “detailed statement” NEPA requires for proposed agency action “significantly affecting the quality of the human environment.”
CEQ also permitted agencies to comply with NEPA in one
In January 2023, the Park Service and the FAA issued a plan to manage commercial air tours over several national parks in and around San Francisco. In explaining their environmental analysis, they repeatedly relied on CEQ‘s NEPA regulations. See J.A. 8–9, J.A. 20–21, 24–25, 58, 151, 159–63. They asserted that they had complied with NEPA by applying the Park Service‘s categorical exclusion for “[c]hanges or amendments to an approved action when such changes would cause nо or only minimal environmental impacts.” J.A. 8–9.
B.
Federal agencies, whether executive agencies like the FAA and the Park Service or independent agencies like the Nuclear Regulatory Commission and the Federal Energy Regulatory
The “separation of powers and statutory interpretation issue” that CEQ‘s regulations present is thus unremarkable. What is quite remarkable is that this issue has remained largely undetected and undecided for so many years in so many cases.
One apparent reason for the oversight is that CEQ publishes its “regulations” in the Code of Fеderal Regulations, as if that were a credential. The temptation for litigants and courts is to treat publication in the C.F.R. as equal to publication in the United States Code. Trouble is that publication in the C.F.R. is no measure of an agency‘s authority to issue rules that appear there, as Professor Merrill has explained. Thomas W. Merrill, Judge Williams on Administrative Law, 16 N.Y.U. J. L. & Liberty 98, 100–02 (2022) (discussing Health Ins. Ass‘n v. Shalala, 23 F.3d 412 (D.C. Cir. 1994)). The provisions of
No statute confers rulemaking authority on CEQ. President Carter‘s Executive Order cited section 309 of the Clean Air Act. 42 Fed. Reg. 26,967 (May 25, 1977). Under this provision, the Administrator of the Environmental Protection Agency reviews the environmental impact of other federal agencies’ proposed actions.
The Supreme Court‘s pronouncements in this area cannot rescue CEQ‘s regulations. The Court once wrote that CEQ‘s regulations under NEPA are “entitled to substantial deference.” Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). But that Chevron-like statement did not result from an examination of CEQ‘s authority to issue judicially enforceable regulations and cannot be credited in light of the Supreme Court‘s ruling in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). In another case, the Supreme Court stated that CEQ was “established by NEPA with authority to issue regulations interpreting it.” Pub. Citizen, 541 U.S. at 757. The statement appeared without any accompanying legal analysis. We must obey “carefully considered language of the Supreme Court, even if technically dictum.” Winslow v. FERC, 587 F.3d 1133, 1135 (D.C. Cir. 2009) (quoting United States v. Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006)). But we are not bound by every stray remark on an issue the parties neither raised nor discussed in any meaningful way. Seе Webster v. Fall, 266 U.S. 507, 511 (1925); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399–400 (1821) (Marshall, C.J.).
Besides, upholding the CEQ regulations on the theory that these amount to Presidential oversight would raise additional problems. The regulations “replace[d]” the rules of some seventy federal agencies, 43 Fed. Reg. at 55,978, and limited the agencies’ role to supplementing CEQ‘s work with “implementing procedures,”
CEQ‘s regulations, as mentioned, instruct agencies to “confine themselves” to issuing only “implementing procedures” that “comply with [CEQ‘s] regulations.”
As a result, the Agencies here have neither adopted the content of the CEQ regulations nor incorporated those rules by reference. Instead, they obeyed CEQ‘s command and accepted the CEQ regulations as a stand-alone body of law that they must
The Agencies’ NEPA analysis in this case reflected that reality. They repeatedly invoked the CEQ regulations, not their own rules, as the source of the overarching regulatory framework they applied. See J.A. 8–9, 20–21, 24–25, 58, 151, 159–63. Their own NEPA regulations came up only to deal with certain agency-specific aspects of the analysis. See J.A. 9, 20, 161, 169–73, 192, 194, 204–05, 220.
Even if Interior and Transportation had incorporated CEQ’s regulations as their own, they would have been able to do so only for the original 1978 version of the CEQ’s rules. Interior’s current rules went into effect in 2007; Transportation’s in 1985. The CEQ regulations were revised twice before 2023, when the Agencies formulated the Plan. See 87 Fed. Reg. 23,453 (May 20, 2022); 85 Fed. Reg. 43,304 (July 16, 2020). See Wild Va. v. Council on Env’t Quality, 56 F.4th 281, 291 (4th Cir. 2022). The Agencies could not have adopted a body of rules that did not exist at the time. Even if that were possible, nothing in the
III.
A.
Petitioners, without invoking CEQ regulations, argue that the Agencies relied on an improper baseline for their environmental analysis by using the existing level of flights under interim operating authority as the baseline for assessing the еnvironmental effects of the Plan. We agree and hold that it was arbitrary and capricious for the Agencies to treat interim operating authority as the status quo for their NEPA analysis. We reject or decline to reach the rest of Petitioners’ arguments.
When conducting an environmental analysis of a proposed action under NEPA, an agency compares the action’s projected environmental effects to the existing condition of the environment. Through that comparison, the agency can ascertain the magnitude of the proposed action’s environmental impacts. The agency’s choice of the baseline for comparison matters a great deal. If the baseline is artificially high, the agency might erroneously conclude that even highly disruptive actions will have minimal incremental environmental effects. In that event, the agency might avoid conducting a more comprehensive environmental analysis required by NEPA.
In preparing the Bay Area Parks Plan, the Agencies treated the existing air tours in the Parks as the status quo for purposes
Under the Act, “[t]he objective of any air tour management plan shall be to develop acceptable and effective measures to mitigate or prevent the significant adverse impacts, if any, of commercial air tour operations upon the natural and cultural resources, visitor experiences, and tribal lands.”
That, though, is effectively what the Agencies have done here. The Agencies “decided to implement the existing condition”—that is, existing tours conducted under interim operating authority—in the Plan “because the impacts associated with the existing condition, together with reasonable mitigation measures included in the Plan, would not result in significant adverse impacts of commercial air tour operations upon the natural and cultural resources of any of the Parks or visitor experience in any of the Parks.” Record of Decision, supra, at 14. But the “the impacts associated with the existing condition” along with the “mitigation measures” in the Plan would “not result in significant adverse impacts” only because they were compared to the existing condition itself. It was
The Agencies insist that Congress set interim operating authority as the status quo and that their choice of interim operating authority as the baseline thus was reasonable. True, Congress provided for granting interim operating authority as a means of smoothing the transition between the pre- and post-Air Tour Management Act worlds. But Congress did not intend for the Agencies to treat the level of pre-Act air tours as a legal status quo against which to compare all potential Plans. Under such an approach, the Agencies could grandfather in all pre-Act air tours without ever conducting a NEPA analysis. Congress, though, enacted the Act to “preserve, protect, and enhance the environment by minimizing, mitigating, or preventing the adverse effects of aircraft overflights” on national parks. Pub. L. No. 106-181, § 802(2), 114 Stat. at 186.
To achieve those objectives, Congress constructed a detailed scheme by which any operator of national-park air tours would be required to obtain approval from the Agencies, and the Agencies would likewise be required to develop detailed plans governing commercial air tour operations. See
This case is unlike Conservation Law Foundation v. FERC, 216 F.3d 41 (D.C. Cir. 2000), on which the Agencies rely. There, we upheld the Federal Energy Regulatory Commission’s decision to use the existing conditions of an operating dam as the baseline for analyzing the environmental effects of relicensing the dam. But we noted that the relevant statute “says nothing about whether the baseline for the Commission’s comparative inquiry should be today or sometime other than today.” Id. at 46. By contrast, the Parks Act makes clear that the provisional grant of interim operating аuthority should not function as the baseline for environmental analysis. In addition, we noted in Conservation Law Foundation that, regardless of the Commission’s choice of baseline, it had “fully examined” the environmental effects of its proposed action and the alternative options. Id. Here, however, the Agencies failed to fully consider the Plan’s environmental effects because they treated the effects of the existing flights as a starting point.
For these reasons, we hold that the Agencies acted arbitrarily by using the air tours conducted under interim operating authority as the baseline for evaluating the Bay Area Parks Plan’s environmental effects. Because we hold that the Agencies measured environmental impacts against an improper baseline, we need not consider Petitioners’ argument that the Agencies erred by excluding 2015–2016 flight data from that baseline. Nor need we address their contention that interim operating authority does not qualify as an “approved action” for purposes of the approved-action categorical exclusion.
B.
Petitioners argue that the Agencies’ decision not to prepare an environmеntal assessment or environmental impact statement was arbitrary for two additional reasons: (i) the Agencies had previously decided to prepare an environmental assessment for the Bay Area Parks and abandoned that plan, and (ii) the Agencies have prepared—or are planning to prepare—environmental assessments for other, allegedly similar national parks. We reject both arguments.
First, it was not arbitrary for the Agencies to reverse course and decline to prepare an environmental assessment for the Bay Area Parks. In 2011, the Agencies published a notice in the Federal Register stating their intent to prepare an environmental assessment for the Parks. See 76 Fed. Reg. at 45,312. The Agencies “paused” that process upon amendment of the Act in 2012 and later “formally terminated” the process in 2020. Record of Decision, supra, at 2–3. When an agency reverses course, it must “display awareness that it is changing position” and “show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (emphasis omitted). Here, the Agencies acknowledged their change оf course and provided a reasonable explanation for it: to initiate fresh environmental review processes better suited to current circumstances. See 85 Fed. Reg. at 55,060; accord Record of Decision, supra, at 4.
Second, it was not arbitrary for the Agencies to decline to prepare an environmental assessment for the Bay Area Parks even though they prepared or are planning to prepare environmental assessments for purportedly similar national parks. Petitioners’ argument boils down to a simplistic comparison between the number of air tours conducted in the Bay Area Parks and the number of air tours conducted
IV.
We come then to the question of remedy. Pursuant to section 706(2) of the Administrative Procedure Act,
If the Agencies and Petitioners desire to keep the current Plan in place while the Agencies restart their NEPA review, the parties may move for a stay of our mandate. Honeywell Int’l Inc. v. EPA, 374 F.3d 1363, 1375 (D.C. Cir. 2004) (Randolph, J., concurring); accord Griffin v. HM Fla.-ORL, LLC, 144 S. Ct. 1, 2 n.1 (2023) (statement of Kavanaugh, J.). This approach has several practical advantages. It allows the court to hear from both sides, and perhaps from intervenors or amici curiae, gather information about the consequences of granting or denying relief, and decide the question in accordance with our well-established standards for issuing a stay. See NRDC v. EPA, 489 F.3d 1250, 1263–64 (D.C. Cir. 2007) (Randolph, J., concurring).
A stay can also place limits and reporting requirements on an agency, thus giving “the agency an incentive to act in a reasonable time.” Id. at 1264 (Randolph, J., concurring). One might expect that the Agencies will move “promptly” on remand. But an expectation is not an obligation. This court has already had to issue a writ of mandamus to forcе the Agencies’ hands. See In re PEER, 957 F.3d at 269. Petitioners should not be saddled with having to clear the bar of mandamus relief if the Agencies take too long. The Agencies acted without authority; they should bear the burden of justifying a stay of the mandate.
* * *
The petition for review is granted, the FAA’s order is vacated, and the case is remanded to the FAA.
So ordered.
As I have maintained, the Administrative Procedure Act requires courts to vacate agency action determined to be unlawful. See Checkosky v. SEC, 23 F.3d 452, 491 (D.C. Cir. 1994) (opinion of Randolph, J.); NRDC v. EPA, 489 F.3d 1250, 1262 (D.C. Cir. 2007) (Randolph, J., concurring); Comcast Corp. v. FCC, 579 F.3d 1, 10 (D.C. Cir. 2009) (Randolph, J., concurring). Section 706(2) provides that a reviewing court “shall . . . hold unlawful and set aside” agency action that violates the APA.
Section 706(2)’s text thus admits of only one meaning: a court must—not may—vacate agency action that is arbitrary or capricious or otherwisе unlawful. A long line of this court’s precedents reinforce that conclusion. See Comcast, 579 F.3d at 10–11 & n.2 (Randolph, J., concurring) (collecting cases); Checkosky, 23 F.3d at 491–93 & n.35 (opinion of Randolph, J.) (same). It is true that there are decisions of this court ordering remand without vacatur. E.g. Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 151 (D.C. Cir. 1993). But not one of those decisions even attempted to explain how “shall” and “set aside” in § 706(2) could possibly mean “disregard” and “keep in place” unlawful agency action. See Webster v. Fall, 266 U.S. 507, 511 (1925).
I think it would be buying grief to suggest that a court may exercise its equitable discretion to disregard [§ 706(2)] by leaving a regulation “not in accordance with law” in еffect, or by allowing a revised rule to be formulated and then applied as though it had been issued earlier. For one thing, since not all proceedings calling a rule into question are equitable proceedings – for example, a civil penalty suit brought by the agency for violation of the invalid rule – such a principle would create considerable potential for inconsistent application. (The ordinary statutory provision for direct court-of-appeals review of rulemaking does not, I think, establish an equitable proceeding . . . .) Even apart from this problem, however, I am sure it is not wise for us to invite agencies to seek exercise of ‘equitable discretion’ to let invalid rules stand.
Id. Thus, § 706(2) forecloses judicial discretion, equitable or otherwise. See Miller v. French, 530 U.S. 327, 340–341 (2000).
I join Part III of the court’s opinion, in which we reject the Agencies’ use of the existing level of flights under interim operating authority as the baseline for measuring the environmental effects of their Air Travel Management Plan. Respectfully, though, I am unable to join Parts II and IV of the court’s opinion, in which my colleagues, respectivеly: (i) consider whether the CEQ has authority to issue binding NEPA regulations and conclude it does not; and (ii) determine that the Agencies’ challenged action must be vacated even though the effect of vacatur is to put the prevailing party (petitioners) in a worse position. No party in this case asks us take either of those steps. And in substantially similar circumstances, our court has consistently refrained from unnecessarily deciding the CEQ regulations’ validity or unnecessarily vacating agency action. I would follow the same course here.
1. In Part II of the court’s opinion, my colleagues determine that the CEQ lacks authority to issue binding regulations implementing NEPA. There is no cause to reach that issue in this case.
First and foremost, no party challenges the CEQ’s regulations. In nonetheless reaching out to address the issue, the court contravenes “our established ‘principle of party presentation.’” Keepseagle v. Perdue, 856 F.3d 1039, 1055 (D.C. Cir. 2017). That principle embodies the idea “that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” McBride v. Merrell Dow & Pharm., 800 F.2d 1208, 1210 (D.C. Cir. 1986). After all, “[o]ur аdversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in judgment). And when no party raises an issue, we of course lack the benefit of the parties’ presentation of briefing and argument on it.
Of particular salience, we have specifically and steadfastly adhered to the party presentation principle in declining to address the exact issue my colleagues venture out to decide today. 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. See, e.g., Nevada v. Dep’t of Energy, 457 F.3d 78, 87 n.5 (D.C. Cir. 2006) (“The DOE accepts [the CEQ regulations] as binding, as do we for purposes of this appeal.”); Grand Canyon Tr. v. FAA, 290 F.3d 339, 341 n.* (D.C. Cir. 2002) (“Neither party challenges the regulatory authority of the CEQ, and hence we have no occasion to question the binding effect of the regulations on the FAA.”); City of Alexandria v. Slater, 198 F.3d 862, 866 n.3 (D.C. Cir. 1999) (“Because the Administration does not challenge the Council‘s regulatory authority, we treat the Council‘s regulations as binding on the agency.”).
There is all the more reason to abide by the party presentation principle in this case because we are already ruling in favor of the petitioners on another ground they did raise: that the Agencies’ choice to use the existing level of flights as the baseline was improper. The relevant CEQ regulation enables the Agencies to rely on a “categorical exclusion” from NEPA’s otherwise-applicable requirement to prepare a formal environmental analysis. See
My сolleagues ground their decision to assess the CEQ’s authority to issue binding regulations on the idea that the question implicates the separation of powers. See Maj. Op. 8, supra. But that of course was no less true in the repeated occasions in which we declined to address precisely the same issue because no party raised the challenge. Even if the parties could not “by consent cure” the issue if it were squarely presented, id. (quoting Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 850 (1986)), my colleagues do not suggest that the court is somehow obligated to address the issue even though no party has presented it. Rather, as our consistent line of decisions declining to address the validity of the CEQ regulations confirms, the normal rule that we do not take up a challenge unless a party raises it is fully applicable here.
Even assuming the party presentation principle could give way in certain circumstances involving a separation-of-powers issue, this case would not be a prime candidate for that kind of exception. My colleagues reference Mexichem Fluor, Inc. v. EPA, 866 F.3d 451 (D.C. Cir. 2017), in support of their invocation of separation-of-powеrs principles as a reason to address the CEQ regulations’ validity. Maj. Op. 8, 13, supra. Unlike in this case, the party in Mexichem raised the issue the court decided—whether EPA had authority to issue a rule restricting the manufacture of products containing a regulated chemical. 866 F.3d at 456. The restrictive effect of the challenged rule fell directly on a regulated private party, a context in which we are generally sensitive to the “bedrock separation of powers principle[]” of assuring the agency’s
Here, by contrast, the CEQ’s relevant regulation operates directly on the Agencies, not on a regulated private party: the regulation enables the Agencies to forgo preparing a formal environmental analysis if a categorical exclusion is available. And by doing so, the regulation enables the Agencies to circumscribe their regulatory ambit, not expand it. What is more, to the extent my colleagues believe the party presentation principle should give way even if the рarty bound by a CEQ regulation is an agency rather than a regulated party, the regulation in question here does not in fact bind an agency. Instead, the regulation enables an agency to rely on a categorical exclusion without requiring the agency to do so. See
For all of those reasons, I would adhere to our consistent practice of declining to address the validity of the CEQ regulations when no party asks us to do so.
2. My colleagues not only address an issue that no party raises, but they also order a remedy that no party desires. That action, too, is out of step with our decisions in like circumstances.
Petitioners, the prevailing parties in this case, understandably do not want a vacatur of the Agencies’ Air Travel Management Plan. That remedy would leave
Largely for that reason, “[n]o party to this litigation asks that the court vacate [the Plan].” Env’t Def. Fund v. Adm’r, U.S. EPA, 898 F.2d 183, 190 (D.C. Cir. 1990). Petitioners, while successfully challenging the Plan, submit that vacatur would be “unjust” because it would only increase air tours’ environmental effects on the Bay Area Parks. Pet. Reply Br. 26. The Agencies, for their part, agree. While they defend the Plan, they allow that if petitioners’ challenge succeeds, then “vacating the Plan while the Agencies conducted more environmental analysis would cause disruptive consequences.” Agencies’ Br. 67. And because “the adverse consequences would fall on the very places and people that the Plan protects,” the Agencies explain, “the Court should exercise its equitable discretion by leaving the Plan in place while the Agencies conduct more NEPA analysis.” Id. at 68.
When confronted with similar circumstances, our court has repeatedly remanded to an agency without vacating a flawed but environmentally protective agency action. See, e.g., Ctr. for Biological Diversity, 861 F.3d at 188–89; North Carolina, 550 F.3d at 1178; Env’t Def. Fund, 898 F.2d at 190; Sierra Club v. EPA, 167 F.3d 658, 664 (D.C. Cir. 1999); Nat’l Lime Ass’n v. EPA, 233 F.3d 625, 635 (D.C. Cir. 2000); U.S. Sugar Corp. v. EPA, 844 F.3d 268, 270 (D.C. Cir. 2016) (per
My colleagues express uncertainty about whether the Agencies would ultimately be able to achieve the same result as the successfully-challenged Plan. Maj. Op. 24, supra. The question, though, is what happens while the Agencies undertake that analysis. And in that regard, there is no cause here for putting the prevailing party in a worse position than the status quo while the proceedings before the Agencies move forward. To the contrary, “[w]e have [] frequently remanded without vacating when a rule’s defects are curable and where vacatur would at least temporarily defeat . . . the enhanced protection of the environmental values covered by the [rule].” U.S. Sugar Corp., 844 F.3d at 270 (emphasis added) (quotation marks and citation omitted). The defect here—the Agencies’ use of an improper baseline—is at least “curable.” Id.
In North Carolina v. EPA, for instance, we determined that the Clean Air Interstate Rule (CAIR) was “fundamentally flawed” and that “[n]o amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule.” 531 F.3d 896, 929–30 (D.C. Cir. 2008). But we remanded without vacatur, explaining that, “nоtwithstanding the relative flaws of CAIR, allowing CAIR to remain in effect until it is replaced by a rule consistent with our opinion would at least temporarily preserve the environmental values covered by CAIR.” 550 F.3d at 1178. We described that “method of disposition [as] consistent with the court’s precedents.” Id.
Along the same lines, in Sierra Club v. EPA, we rejected EPA’s methodology in a rule as “hopelessly irrational.” 167 F.3d at 664. But we remanded without vacatur because Sierra
Notes
“[W]hen questions involving the Constitution‘s government-structuring provisions аre presented in a justiciable case, it is the solemn responsibility of the Judicial Branch ‘to say what the law is.’ Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). This Court does not defer to the other branches resolution of such controversies; as Justice KENNEDY has previously written, our role is in no way ‘lessened’ because it might be said that ‘the two political branches are adjusting their own powers between themselves.’ Clinton [v. City of New York, 524 U.S. 417, 449 (1998)] (concurring opinion). Since the separation of powers exists for the protection of individual liberty, its vitality ‘does not depend’ on ‘whether ‘the encroached-upon branch approves the encroachment.‘’ Free Enterprise Fund, 561 U.S. 477, 497 (2010) (quoting New York v. United States, 505 U.S. 144, 182 (1992)); see also Freytag v. Commissioner, 501 U.S. 868, 879–880 (1991); Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276–277 (1991). Rather, policing the ‘enduring structure’ of constitutional government when the political branches fail to do so is ‘one of the most vital functions of this Court.’ Public Citizen v. Department of Justice, 491 U.S. 440, 468 (1989) (KENNEDY, J., concurring in judgment).”