Justia Environmental Law Opinion Summaries

Articles Posted in US Court of Appeals for the Ninth Circuit
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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

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The Ninth Circuit affirmed the district court's grant of summary judgment to the Forest Service and intervenors in an action challenging the Forest Service's issuance of grazing authorizations between 2006 and 2015 on seven allotments in the Malheur National Forest. ONDA argued that the Forest Service acted arbitrarily and capriciously in its application of the Administrative Procedure Act (APA) and the National Forest Management Act (NFMA) by failing to analyze and show that the grazing authorizations were consistent with the Forest Plan.The panel held that ONDA's challenge is justiciable where the challenge was sufficiently ripe and the dispute was not moot. On the merits, the panel held that the Forest Service met its procedural and substantive obligations pursuant to the NFMA and the APA in issuing the grazing authorizations. In this case, because the Forest Service was not obligated by statute, regulation, or caselaw to memorialize each site-specific grazing authorization's consistency with the forest plan, the panel held that the absence of such a document is not in itself arbitrary and capricious. Furthermore, the Forest Service did not act arbitrarily or capriciously with respect to the NFMA's consistency requirement as applied to Standard GM-1 in issuing any of the challenged grazing authorizations. Finally, the Forest Service did not act arbitrarily or capriciously with respect to Standard 5 in issuing any of the challenged grazing authorizations. View "Oregon Natural Desert Assoc. v. United States Forest Service" on Justia Law

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The Ninth Circuit granted a petition for writ of mandamus and ordered the EPA to respond to the NRDC's petition requesting that the EPA end the use of a dangerous pesticide, tetrachlorvinphos (TCVP), in household pet products. The panel held that the EPA has unreasonably and egregiously delayed the performance of its statutory duties on this critical matter of public health and that the circumstances warrant the extraordinary remedy of issuing a writ of mandamus.The panel considered the factors established in Telecomms. Research and Action Ctr. (TRAC) v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984), and held that the factors supported mandamus relief where, for more than a decade, the EPA has frustrated NRDC's ability to seek judicial review by withholding final agency action, all the while endangering the well-being of millions of children and ignoring its "core mission" of "protecting human health and the environment." The panel noted that, if the EPA begins cancellation proceedings, then the panel expects cancellation proceedings to conclude within one year of the date of this decision, and any extension beyond that must be supported by a showing of good cause. If the agency denies NRDC's petition on the merits, then NRDC may appeal that final agency action under the standards of the Administrative Procedure Act and any other applicable law. View "Natural Resources Defense Council v. EPA" on Justia Law

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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