Justia Environmental Law Opinion Summaries

Articles Posted in US Court of Appeals for the Ninth Circuit
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The Ninth Circuit affirmed the district court's grant of summary judgment for federal agencies and officials and ConocoPhillips in an action brought under the National Environmental Policy Act (NEPA) challenging the BLM's 2017 offer and sale of oil and gas leases in the National Petroleum Reserve-Alaska. The panel first held that plaintiffs' actions are not entirely time barred by the Naval Petroleum Reserves Production Act (NPRPA). To the extent plaintiffs argued that the 2017 lease sale was a distinct federal action requiring a tiered or stand-alone NEPA analysis, the panel found that their challenge is justiciable. Because the panel can reasonably construe the defined scope of the 2012 environmental impact statement (EIS) to include the 2017 lease sale, the panel deferred to BLM's position that the 2012 EIS was the EIS for the 2017 lease sale. Therefore, the panel found that the BLM met the NEPA requirement for the 2017 lease sale of preparing at least an initial EIS, any challenge to the adequacy of which is now time barred. Furthermore, although plaintiffs alleged significant new information and circumstances known to BLM before the 2017 lease sale, the panel stated that the appropriate rubric for considering these allegations—given the existence of an initial EIS—is supplementation, and plaintiffs have waived any supplementation claim. View "Northern Alaska Environmental Center v. Department of the Interior" on Justia Law

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In 2007, the FWS first issued a rule declaring the Yellowstone grizzly population a "distinct population segment" within the meaning of the Endangered Species Act (ESA) and removing it from the protections of the ESA. The Ninth Circuit upheld the district court's determination that further agency consideration was required and remanded, which resulted in a second delisting rule, Rule 2017, which the district court again vacated and remanded. In the remand order, the district court found three important deficiencies in the FWS's analysis. As a preliminary matter, the panel held that a remand of an agency's rulemaking is a final order as to the government and thus appealable. Furthermore, the panel has jurisdiction to consider the intervenors' appeals regarding recalibration. On the merits, the panel affirmed the district court in all respects, with the exception of the order requiring the FWS to conduct a "comprehensive review" of the remnant grizzly population. As to that order, the panel remanded for the district court to order further examination of the delisting's effect on the remnant grizzly population. View "Crow Indian Tribe v. United States" on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for defendants in an action alleging that the BLM's geld and release plan for wild horses violated the National Environmental Policy Act (NEPA), the Administrative Procedure Act (APA), and the Wild Free-Roaming Horses and Burros Act. The panel held that the BLM did not act arbitrarily or capriciously when it chose to geld and release some of the male horses that would otherwise be permanently removed. The panel also held that the BLM permissibly determined that the intensity factors, whether considered individually or collectively, did not show that the Gather Plan would have a significant effect on the environment; the BLM considered and addressed the relevant factor that the Gelding Study raised and explained why additional information was not available, which meets NEPA's "hard look" standard; the Wild Free-Roaming Horses and Burros Act does not require the BLM to discuss explicitly all expert opinions submitted during the public-comment period; and by addressing the concerns and factors that the NAS Report raised, the BLM complied with the Wild Free-Roaming Horses and Burros Act's requirement that the BLM "consult" the National Academy of Sciences. View "American Wild Horse Campaign v. Bernhardt" on Justia Law

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The Department of Defense Appropriations Act of 2019 does not authorize the Department of Defense (DoD) to make budgetary transfers from funds appropriated by Congress to it for other purposes in order to fund the construction of a wall on the southern border of the United States in California and New Mexico. The Ninth Circuit first held that California and New Mexico have Article III standing to pursue their claims because they have alleged that the actions of the Federal Defendants will cause particularized and concrete injuries in fact to the environment and wildlife of their respective states as well as to their sovereign interests in enforcing their environmental laws; California has alleged environmental and sovereign injuries "fairly traceable" to the Federal Defendants' conduct; and a ruling in California and New Mexico's favor would redress their harms. Furthermore, California and New Mexico easily fall within the zone of interests of Section 8005 of the Act and are suitable challengers to enforce its obligations under the Administrative Procedure Act. The panel held that the district court correctly determined that Section 8005 did not authorize DoD's budgetary transfer to fund construction of the El Paso and El Centro Sectors. The panel explained that the district court correctly determined that the border wall was not an unforeseen military requirement, that funding for the wall had been denied by Congress, and therefore, that the transfer authority granted by Section 8005 was not permissibly invoked. Therefore, the panel affirmed the district court's judgment, declining to reverse the district court’s decision against imposing a permanent injunction, without prejudice to renewal. View "California v. Trump" on Justia Law

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Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019 does not authorize the Department of Defense's budgetary transfers to fund construction of the wall on the southern border of the United States in California, New Mexico, and Arizona. The Ninth Circuit first held that Sierra Club and SBCC have established that their members satisfy the demands of Article III standing to challenge the Federal Defendants' actions. In this case, Sierra Club's thousands of members live near and frequently visit these areas along the U.S.-Mexico border to do a variety of activities; the construction of a border wall and related infrastructure will acutely injure their interests because DHS is proceeding with border wall construction without ensuring compliance with any federal or state environmental regulations designed to protect these interests; and the interests of Sierra Club's members in this lawsuit are germane to the organization's purpose. Furthermore, SBCC has alleged facts that support that it has standing to sue on behalf of itself and its member organizations. Sierra Club and SBCC have also shown that their injuries are fairly traceable to the challenged action of the Federal Defendants, and their injuries are likely to be redressed by a favorable judicial decision. The panel held that neither Section 8005 nor any constitutional provision authorized DoD to transfer the funds at issue. The panel reaffirmed its holding in State of California, et al. v. Trump, et al., Nos. 19-16299 and 19-16336, slip op. at 37 (9th Cir. filed June 26, 2020), holding that Section 8005 did not authorize the transfer of funds at issue here because "the border wall was not an unforeseen military requirement," and "funding for the wall had been denied by Congress." The panel also held that Sierra Club was a proper party to challenge the Section 8005 transfers and that Sierra Club has both a constitutional and an ultra vires cause of action here. The panel explained that the Federal Defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties. The panel considered the Federal Defendants' additional arguments, holding that the Administrative Procedure Act (APA) is not to be construed as an exclusive remedy, and the APA does not displace all constitutional and equitable causes of action, and Sierra Club falls within the Appropriations Clause's zone of interests. Finally, the panel held that the district court did not abuse its discretion in granting Sierra Club a permanent injunction enjoining the federal defendants from spending the funds at issue. View "Sierra Club v. Trump" on Justia Law

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In 2018, the EPA approved conditional registrations for three dicamba-based herbicides for an additional two years. Petitioners sought review of the 2018 decision, alleging that it violates both the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA). The Ninth Circuit held that the EPA's 2018 decision, and the conditional new-use registrations of XtendiMax, Engenia, and FeXapan for use on DT soybean and cotton that are premised on that decision, violate FIFRA. The panel explained that it need not decide whether substantial evidence supports a finding that the applicants submitted satisfactory data, because the panel held that the EPA substantially understated risks that it acknowledged and failed entirely to acknowledge other risks. In this case, among other things, the EPA substantially understated the amount of DT seed acreage that had been planted in 2018, and, correspondingly, the amount of dicamba herbicide that had been sprayed on post-emergent crops; the EPA purported to be agnostic as to whether formal complaints of dicamba damage under-reported or overreported the actual damage, when record evidence clearly showed that dicamba damage was substantially under-reported; and the EPA refused to estimate the amount of dicamba damage, characterizing such damage as "potential" and "alleged," when record evidence showed that dicamba had caused substantial and undisputed damage. Therefore, the panel vacated the EPA's 2018 decision and the three registrations premised on that decision. View "National Family Farm Coalition v. U.S. Environmental Protection Agency" on Justia Law

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This appeal stemmed from Volkswagen's installation of defeat devices in new cars for the purpose of evading compliance with federally mandated emission standards, and subsequent updating of the software in those cars so the defeat devices would do a better job of avoiding and preventing compliance. After Volkswagen settled EPA's criminal and civil actions for over $20 billion dollars, two counties sought to impose additional penalties for violation of their laws prohibiting tampering with emission control systems. The district court concluded that the claims were preempted by the Clean Air Act (CAA). The Ninth Circuit held that, although the CAA expressly preempts state and local government efforts to apply anti-tampering laws to pre-sale vehicles, the CAA does not prevent the two counties here from enforcing their regulations against Volkswagen for tampering with post-sale vehicles. Furthermore, the panel rejected Volkswagen's assertions that the counties' anti-tampering rules were preempted under ordinary preemption principles. In this case, the panel saw no indication that Congress intended to preempt state and local authority to enforce anti-tampering rules on a model-wide basis. Furthermore, the CAA's cooperative federalism scheme, its express preservation of state and local police powers post sale, and the complete absence of a congressional intent to vest in the EPA the exclusive authority to regulate every incident of post-sale tampering raised the strong inference that Congress did not intend to deprive the EPA of effective aid from local officers to combat tampering with emission control systems. View "The Environmental Protection Commission of Hillsborough County v. Volkswagen Group of America, Inc." on Justia Law

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Plaintiffs filed suit challenging the Secretary's issuance, under the Indian Gaming Regulatory Act (IGRA), of Secretarial Procedures which authorize the North Fork Rancheria of Mono Indians to operate class III gaming activities on a parcel of land in Madera, California. The district court granted summary judgment in favor of the Secretary and intervenor. The Ninth Circuit affirmed in part as to plaintiffs' Johnson Act claim, holding that Secretarial Procedures are an exception to the prohibitions of the Johnson Act and thus they comply with the Administrative Procedure Act. The panel vacated and remanded in part as to the National Environmental Policy Act (NEPA) claim, holding that the IGRA does not categorically bar application of NEPA because the two statutes are not irreconcilable and do not displace each other, and because a contrary result would contravene congressional intent and common sense. Finally, the panel vacated and remanded in part as to the Clean Air Act (CCA) claim, holding that Secretarial Procedures are categorically exempt from the CAA's requirement of a conformity determination. View "Stand Up for California! v. U.S. Department of the Interior" on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment to the Department of Defense in an action challenging the Department's construction and operation of an aircraft base in Okinawa, Japan. Plaintiffs also challenged the potential adverse effects on the endangered Okinawa dugong. The panel held that the Department complied with the procedural requirement that it "take into account" the effects of its proposed action on foreign property under Section 402 of the National Historic Preservation Act (NHPA). The panel also held that the Department's finding that its proposed action would have no adverse effect on the foreign property was not arbitrary, capricious, an abuse of discretion, and/or contrary to law in violation of Section 706 of the Administrative Procedure Act (APA). In this case, the Department met its procedural obligations and its finding of "no adverse impact" was not arbitrary and capricious. View "Center for Biological Diversity v. Esper" on Justia Law

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The Ninth Circuit granted the Forest Service's request to publish the unpublished Memorandum Disposition with modifications. The panel reversed the district court's grant of summary judgment for the Forest Service in an action alleging violations of the National Environmental Policy Act (NEPA) and National Forest Management Act (NFMA). The panel held that the Forest Service's determination that the Crystal Clear Restoration Project did not require an Environmental Impact Statement (EIS) was arbitrary and capricious for two independent reasons. First, the effects of the Project are highly controversial and uncertain, thus mandating the creation of an EIS. Second, the Forest Service failed to identify and meaningfully analyze the cumulative impacts of the Project. Because an EIS is required, and because the findings in the EIS could prompt the Forest Service to change the scope of the Project or the methods it plans to use, the panel did not reach the remaining claims. The panel reversed and remanded for further proceedings. View "Bark v. United States Forest Service" on Justia Law