Marin Audubon Society v. FAA is back in the news. Last week, the D.C. Circuit returned to the case for the second time since the panel’s November 2024 judgment. For our prior coverage of the November judgment, which threatened to “upend()” fifty years of law implementing the National Environmental Policy Act (NEPA), see here.

In November, a panel vacated an air tour management plan devised by the FAA and the National Park Service that dealt with flights over national parks in the Bay Area. The panel unanimously concluded that the agencies acted arbitrarily and capriciously when they “relied on an improper baseline for their environmental analysis,” quite apart from any alleged violation of NEPA regulations promulgated by the Council on Environmental Quality (CEQ). Two members of the panel – Judge Henderson and Judge Randolph – also concluded that CEQ did not have authority to promulgate regulations implementing NEPA, an issue that the parties did not raise or brief. CEQ’s purported authority, the panel’s majority reasoned, stemmed not from a congressional delegation of rulemaking authority but from a presidential delegation. The president, however, did not have the power to delegate rulemaking authority to CEQ. Chief Judge Srinivasan, the third member of the panel, dissented on this issue, which he argued was not properly before the court.

Both sides petitioned for rehearing en banc on the issue of CEQ’s authority, which was denied in January 2025. Chief Judge Srinivasan wrote for seven judges in a short opinion explaining that en banc review was not warranted because the panel majority’s discussion of the CEQ’s authority was not necessary to the outcome.

The parties then moved to stay the mandate, which the DC Circuit granted last week. Judge Randolph wrote for the court and explained that a 12-month stay was equitable and in the public interest. The panel’s November 2024 judgment had decided to vacate the agencies’ action, with Chief Judge Srinivasan dissenting on that issue too. Vacatur would harm the petitioners, who prevailed, by restoring a prior plan that allowed for more overflights. Staying the mandate would prevent that outcome.

In his explanation of last week’s decision to stay the mandate for a year, Judge Randolph discussed the relationship between the Allied-Signal analysis of vacatur and the criteria for a stay of a mandate to vacate agency action. Sometimes, the D.C. Circuit’s “stay practice somewhat resembles the remand-without-vacatur cases where vacatur will leave the prevailing party worse off.” Even so, “the Allied-Signal approach cannot be applied wholesale” at the stage of deciding whether to stay a vacatur order:

Under Allied Signal, the principal question is whether we should vacate the flawed agency action. But here, we have already determined that vacatur is the appropriate remedy under the APA. “Staying the mandate presupposes the opposite presumption of remand without vacatur” because it “assumes that the underlying action is substantively deficient.” … Instead, granting a stay motion is grounded in “equitable considerations” and is designed to “relieve() the parties from the onerous results of the court’s holding until the agency can redo its analysis.”

In short, when one equitable safety valve closes, another opens.