Marin Audubon Society v. Federal Aviation Administration, U.s. Department of Transportation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed January 31, 2025
No. 23-1067
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
On Petition for Review of an Order
of the Federal Aviation Administration
On Petition for Rehearing En Banc
Before: SRINIVASAN*, Chief Judge; HENDERSON,
MILLETT*, PILLARD*, WILKINS*, KATSAS, RAO, WALKER,
CHILDS*, PAN*, and GARCIA*, Circuit Judges; and RANDOLPH,
Senior Circuit Judge

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O R D E R
Upon consideration of petitioners’ and federal respondents’
petitions for rehearing en banc, the responses thereto;
respondents’ 28(j) letter, and the response thereto; and the
absence of a request by any member of the court for a vote, it is
ORDERED that the petitions be denied.
Per Curiam
FOR THE COURT:
Clifton B. Cislak, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
* A statement by Chief Judge Srinivasan, joined by Circuit
Judges Millett, Pillard, Wilkins, Childs, Pan, and Garcia,
concurring in the denial of rehearing en banc, is attached.

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SRINIVASAN, Chief Judge, with whom Circuit Judges
MILLETT, PILLARD, WILKINS, CHILDS, PAN, and GARCIA join,
concurring in the denial of rehearing en banc:
All parties have sought en banc rehearing with respect to
Part II of the panel opinion, in which the panel majority opined
that the CEQ lacks authority to issue binding NEPA
regulations. Because no party raised or briefed that issue, the
panel majority’s engagement with it, in my view, ran afoul of
the principle of party presentation. See United States v.
Sineneng-Smith, 590 U.S. 371, 375 (2020); Marin Audubon
Soc’y v. FAA, 121 F.4th 902, 920–22 (D.C. Cir. 2024)
(Srinivasan, C.J., dissenting in part).
While all parties have agreed and urged the en banc court
to grant review and excise that part of the panel’s opinion, I
concur in the denial of en banc rehearing. The panel
unanimously ruled in favor of the challenge in this case on an
entirely separate ground (one that the parties did raise and
brief), see id. at 915–18, meaning that the panel majority’s
rejection of the CEQ’s authority to issue binding NEPA
regulations was unnecessary to the panel’s disposition, see id.
at 921 (Srinivasan, C.J., dissenting in part). That conclusion in
fact could not independently support the panel’s disposition to
set aside the agencies’ challenged action: because the relevant
CEQ regulation does not require an agency to do anything but
instead gives an agency the option to rely on a categorical
NEPA exclusion, see id. at 922 (Srinivasan, C.J., dissenting in
part); Gov’t Pet. for Reh’g En Banc at 14, any conclusion that
the CEQ lacks authority to issue binding regulations would
leave unaffected the agencies’ challenged choice here to make
use of a categorical exclusion. In these circumstances, there is
no cause to grant en banc rehearing. See Al-Bihani v. Obama,
619 F.3d 1, 1 (D.C. Cir. 2010) (Sentelle, C.J., and Ginsburg,
Henderson, Rogers, Tatel, Garland, & Griffith, JJ., concurring
in the denial of rehearing en banc) (“declin[ing] to en banc this

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case” because “the panel’s discussion of [the relevant] question
is not necessary to the disposition of the merits”).

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