But out of nowhere, sandwiched in the ruling, came another set of opinions written by one of the three judges, Arthur Randolph. He declared that CEQ had never been given rulemaking authority. “What is quite remarkable is that this issue has remained largely undetected and undecided for so many years in so many cases,” he wrote. (Another judge dissented in part to Randolph’s opinion.)
Though multiple lawyers knew Randolph had a bone to pick with CEQ, that he brought his issues up in this case confused both sides of the courtroom. “Neither side had argued that,” says Jeff Ruch, a lawyer with PEER. “It’s sort of dumb.”
