Justia Environmental Law Opinion Summaries

Articles Posted in US Court of Appeals for the Ninth Circuit
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The Ninth Circuit reversed the district court's interlocutory orders in an action brought by plaintiffs, an environment organization and individual plaintiffs, alleging climate-change related injuries caused by the federal government continuing to "permit, authorize, and subsidize" fossil fuel. In this case, a substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse. The panel first rejected the government's contention that plaintiffs' claim must proceed, if at all, under the Administrative Procedure Act. Although plaintiffs had concrete and particularized injuries and the district court properly found the Article III causation requirement satisfied, the panel reluctantly concluded that plaintiffs' injuries were not redressable by an Article III court. The panel held that it was beyond the power of an Article III court to order, design, supervise, or implement plaintiffs' requested remedial plan. Rather, the panel stated that plaintiffs' impressive case for redress must be presented to the political branches of government. Accordingly, the panel remanded with instructions to dismiss for lack of Article III standing. View "Juliana v. United States" on Justia Law

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CBD filed suit seeking to compel the Department of the Interior to reinstate the Refuges Rule that prevented Alaska from applying certain state hunting regulations on federal wildlife refuges. In 2017, Congress used the Congressional Review Act (CRA) to order Interior to rescind the regulation. The Ninth Circuit held that CBD lacked standing to challenge the Reenactment Provision, because it failed to allege an injury in fact that was more than speculative. Therefore, the panel dismissed CBD's argument that the Reenactment Clause violated the nondelegation doctrine. After determining that the Jurisdiction-Stripping Provision of the CRA did not include any explicit language barring judicial review of constitutional claims, the panel held that the Joint Resolution disapproving the Refuges Rule did not violate the Take Care Clause of the Constitution, and thus CBD's complaint failed to state a claim that was plausible on its face. The panel rejected CBD's argument that the CRA and Joint Resolution violated separation-of-powers principles because they interfere with the Executive Branch's duty under the Take Care Clause. The panel held that, because Congress properly enacted the Joint Resolution, and therefore validly amended Interior's authority to administer national wildlife refuges in Alaska, Congress did not prevent the President from exercising his constitutional duty to faithfully execute the laws. The panel joined other circuits in holding that federal courts do not have jurisdiction over statutory claims that arise under the CRA. In this case, CBD challenged Interior's rescission of the Refuges Rule solely on the ground that Congress did not validly enact the Joint Resolution. Therefore, the panel held that CBD's claim necessarily involved a challenge to a congressional "determination, finding, action or omission" under the CRA, and was therefore subject to the Jurisdiction-Stripping Provision. View "Center for Biological Diversity v. Bernhardt" on Justia Law

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A constructive submission will be found where a state has failed over a long period of time to submit a "total maximum daily loads" (TMDL), and clearly and unambiguously decided not to submit any TMDL. Where a state has failed to develop and issue a particular TMDL for a prolonged period of time, and has failed to develop a schedule and credible plan for producing that TMDL, it has no longer simply failed to prioritize this obligation. Instead, there has been a constructive submission of no TMDL, which triggers the EPA's mandatory duty to act. The Ninth Circuit affirmed the district court's judgment for environmental groups in a citizen suit brought under the Clean Water Act, seeking to compel the EPA to develop and issue a long-overdue temperature TMDL for the Columbia and Snake Rivers. The panel held that Washington and Oregon have clearly and unambiguously decided not to produce and issue a temperature TMDL for the Columbia and Snake Rivers. Therefore, the EPA was obligated to act under section 1313(d)(2) of the Act. View "Columbia Riverkeeper v. Wheeler" on Justia Law

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Petitioners sought review of the EPA's Risk Evaluation Rule establishing a process to evaluate the health and environmental risks of chemical substances. The Rule was promulgated by the EPA under the Toxic Substances Control Act (TSCA). The Ninth Circuit held that it lacked jurisdiction to review petitioners' challenge to provisions of the Rule relating to the process by which EPA will conduct risk determinations. The panel explained that the challenge was not justiciable where petitioners' interpretation of what EPA intended to do and the resulting theory of injury were too speculative. In regard to petitioners' contention that the Rule contravenes TSCA's requirement that EPA consider all of a chemical's conditions of use when conducting a risk evaluation, the panel held that the challenged preambular language was not final agency action and not reviewable under the Administrative Procedure Act. The panel held that challenges to specific provisions of the Rule were justiciable, but they failed on the merits because the provisions that petitioners point to did not in fact assert discretion to exclude conditions of use from evaluation. Finally, the panel held that EPA's exclusion of legacy uses and associated disposals contradicted TSCA's plain language, but that EPA's exclusion of legacy disposals did not. Accordingly, the panel dismissed in part, granted in part, and denied in part. View "Safer Chemicals, Healthy Families v. EPA" on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment to defendants in an action challenging the BIA's decision to approve an industrial-scale wind facility in Southern California. The panel held that the BIA was not required to explain why it did not adopt a mitigation measure that it did in fact follow. Similarly, the panel rejected plaintiffs' related argument that the BIA should have explained why its record of decision (ROD) found no significant impact to eagles where the environmental impact statement (EIS) considered the entire project and its impact on eagles. The panel also held that the BIA's consideration of five action alternatives was sufficient. The panel was not persuaded that additional environmental review was required and rejected plaintiffs' five grounds in support of their contention that the BIA should have prepared a supplemental EIS. The panel rejected plaintiffs' final two challenges to the BIA's decision concerning the agency's decision not to require Tule to obtain a Bald and Golden Eagle Protection Act permit from FWS. Therefore, the panel held that, under the total circumstances of this case, the EIS analysis was sufficient to satisfy the National Environmental Policy Act. View "Protect Our Communities Foundation v. LaCounte" on Justia Law

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Plaintiffs filed suit alleging that the drainage system managed by defendants discharged pollutants into surrounding waters, in violation of the Clean Water Act (CWA). The Ninth Circuit held that the district court properly interpreted "discharges . . .from irrigated agriculture," as used in 33 U.S.C. 1342(l)(1), to mean discharges from activities related to crop production. However, the panel held that the district court erred by placing the burden of demonstrating eligibility for the permit exception on plaintiffs, rather than on defendants, and by misinterpreting "entirely," as used in section 1342(l)(1). In this case, the district court's interpretation of the word "entirely" to mean "majority"— which both parties now concede was erroneous—was thus the but-for cause of the dismissal of plaintiffs' Vega Claim. The panel also held that the district court erred by placing the burden on plaintiffs to demonstrate that the discharges were not covered under section 1342(l)(1), rather than placing the burden on defendants to demonstrate that the discharges were covered under section 1342(l)(1). Furthermore the district court erred by striking plaintiffs' seepage and sediment theories of liability from plaintiffs' motion for summary judgment because the first amended complaint encompassed those claims. Accordingly, the panel reversed and remanded. View "Pacific Coast Federation of Fisherman's Associations v. Glaser" on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for the Forest Service in an action challenging the agency's designation of at-risk forest lands and its approval of the Sunny South Project. The panel held that the landscape-scale area designation under section 6591a(b)(2) did not trigger a requirement for National Environmental Policy Act analysis. In this case, the Forest Service's designation of the areas did not require an environmental assessment or environmental impact statement under the Act. The panel also held that the Forest Service's finding that the project did not involve "extraordinary circumstances" was not arbitrary or capricious. View "Center for Biological Diversity v. Ilano" on Justia Law

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The Center filed suit seeking an injunction under the citizen suit provision of the Resource Conservation and Recovery Act (RCRA) to require the Kaibab National Forest's administrator, the Forest Service, to address hunters' use of lead ammunition in the Kaibab. Scavenger birds ingest the lead ammunition left in animal carcasses and then suffer lead poisoning. The Ninth Circuit reversed the district court's dismissal of the complaint for lack of jurisdiction, holding that the case concerned a genuine adversary issue between the parties and that a ruling in plaintiffs' favor would require the Forest Service to mitigate in some manner the harm caused by spent lead ammunition. The panel rejected the Forest Service's contention that the district court had discretion to decline jurisdiction over the case and held that the district court did not purport to exercise discretion with regard to whether to hear this case, nor could it properly have done so. Rather, the district court's order dismissing the case was based on its determination that it lacked jurisdiction. Furthermore, because the district court improperly determined that there was no jurisdiction over this case, it failed to decide whether the operative complaint stated a claim under 42 U.S.C. 7002 and applicable pleading standards. Accordingly, the court remanded to the district court for further proceedings. View "Center for Biological Diversity v. United States Forest Service" on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for the Forest Service in an action brought by environmental groups challenging travel management plans permitting limited motorized big game retrieval in three Ranger Districts in the Kaibab National Forest. The panel held that the plans did not violate the Travel Management Rule where the new restrictions constitute a "limited" use of motorized vehicles; the Forest Service complied with the rule by limiting motor vehicle use to a defined set of roads in each District; and the Forest Service did not violate the plain terms of the Travel Management Rule. Determining that plaintiffs have standing, the panel held that the Forest Service did not violate the National Environmental Policy Act (NEPA), because the Forest Service's determination that no environmental impact statements (EIS) were needed as to the Districts' travel management plans was reasonable. Finally, the Forest Service did not violate the National Historic Preservation Act (NHPA), because the Forest Service conducted the required prefield work, consulted with the appropriate entities, and reached a determination consistent with the evidence before it. View "WildEarth Guardians v. Provencio" on Justia Law

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After ONDA challenged the BLM's Recreation Plan, which involved the route network for motorized vehicles in the Steens Mountain Area, the Interior Board of Land Appeals approved the related Travel Plan under the National Environmental Policy Act of 1969 (NEPA), the Federal Land Policy Management Act of 1976 (FLPMA), and the Steens Mountain Cooperative Management and Protection Act of 2000 (Steens Act). Harney County then intervened to defend the Board's approval of the Travel Plan and cross-claimed against the BLM, challenging the Recreation Plan. The district court upheld both the Recreation Plan and the Travel Plan. The Ninth Circuit affirmed in part and reversed in part, holding that the BLM satisfied its obligation to consult the Steens Mountain Advisory Council before issuing the Recreation Plan, so its action was not arbitrary and capricious in that respect; the BLM acted arbitrarily and capriciously by changing its definition of "roads and trails" without providing a reasoned explanation for the change; the Board acted arbitrarily and capriciously by affirming the BLM's issuance of the Travel Plan; and the BLM acted arbitrarily and capriciously in issuing the Recreation Plan. Finally, the court vacated the cost award to the BLM and remanded. View "Oregon Natural Desert Assoc.v. Rose" on Justia Law