QUESTIONABLE AUTHORITY: A RECENT CEQ GUIDANCE MEMORANDUM

A June 24, 2005 CEQ guidance memorandum providing that agencies can generally conduct "an adequate cumulative impacts analysis by focusing on the current aggregate effects of past actions without delving into the historical details of individual past actions" arguably qualifies for a minim...

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Bibliographic Details
Published in:Environmental law (Portland, Ore.) Ore.), 2007-06, Vol.37 (3), p.885-908
Main Author: Grothaus, John C.
Format: Article
Language:English
Subjects:
2006 NINTH CIRCUIT ENVIRONMENTAL REVIEW
Administrative agencies
Administrative law
Conservation
courts
Environmental conservation
Environmental impact statements
Environmental law
Environmental legislation
Environmental policy
Federal district courts
Historical account
impact analysis
Legislation
Litigation
Memoranda
National Environmental Policy Act
Nepa
Plaintiffs
Policy analysis
Q1
Q2
Regression analysis
Statutory interpretation
Sustainable development
Wilderness
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Summary:A June 24, 2005 CEQ guidance memorandum providing that agencies can generally conduct "an adequate cumulative impacts analysis by focusing on the current aggregate effects of past actions without delving into the historical details of individual past actions" arguably qualifies for a minimal degree of deference, but should be accorded none. Guidance similarly promulgated by other agencies, but held as authoritative by courts, is distinguishable from the CEQ guidance at issue here. Chevron deference cannot apply, primarily because the Guidance Memorandum is not a product of notice-and comment rulemaking. While Skidmore and Auer deference are arguable, courts should not accord such deference to the guidance because it is unpersuasive given the purpose of NEPA and because the underlying regulation rests on shaky, non-statutory ground.
ISSN:0046-2276