FEATURED CASE
Court decision in Marin Audubon Society v. Federal Aviation Administration (D.C. Cir.)
On November 12, the circuit court reviewed a decision by the FAA and the National Park Service to adopt an Air Tour Management Plan governing tourist flights over four national parks near San Francisco. The agency decision used the Park Service’s categorical exclusion for “[c]hanges or amendments to an approved action when such changes would cause no or only minimal environmental impacts.” Here is the holding:
“Petitioners, without invoking CEQ regulations, argue that the Agencies relied on an improper baseline for their environmental analysis by using the existing level of flights under interim operating authority as the baseline for assessing the environmental effects of the Plan. We agree and hold that it was arbitrary and capricious for the Agencies to treat interim operating authority as the status quo for their NEPA analysis.”
The court added that, “It was unreasonable for the Agencies to avoid fully treating the environmental effects of the Bay Area Parks Plan on the ground that those effects would minimally alter a status quo that itself has never been adequately assessed.” This was especially relevant where the National Parks Act required that, “The objective of any [Plan] shall be to develop acceptable and effective measures to mitigate or prevent the significant adverse impacts.” The plan was vacated (despite the interim plan not including the new mitigation measures sought by the agencies, and vacatur was an outcome neither party had sought), but the court indicated a willingness to stay that order.
The court prefaced its holding in the case with an extensive discussion of why the categorical exclusion that was used by the agencies, and the CEQ regulations in their entirety, are invalid, despite this argument not being made by the parties to the case. The court found that the CEQ had no statutory authority to promulgate binding regulations. NEPA gave the CEQ authority, to “develop and recommend to the President national policies to foster and promote the improvement of environmental quality.” The regulations were issued pursuant to executive orders from two presidents. The court found that, “the Constitution does not permit the President to seize for himself the ‘law-making power of Congress’ by issuing an order that, ‘like a statute, authorizes a government official to promulgate . . . rules and regulations.’” The court did not address the validity of NEPA regulations issued by individual agencies (which tend to include their categorical exclusions).
There is a dissenting opinion objecting to deciding the CEQ authority issue: “the court contravenes “our established ‘principle of party presentation’”” (of the issues to be decided). There are differing opinions regarding how earthshaking this case will be, with even the possibility that, since it was not the basis of the court’s decision in the case, it could be regarded as non-binding dicta. Here’s another take on this new uncertainty in the world of environmental law.
“The implications of this decision are highly uncertain. Many of the CEQ regulations have been legislatively adopted either in particular statutes or in 2023 amendments to NEPA in connection with the Fiscal Responsibility Act. Thus, there is a plausible argument that regardless of whether the CEQ regulations were lawful in the first instance, they may have been ratified by Congress. Furthermore, since so much caselaw has grown on the structure of the CEQ regulations, it is conceivable that little will change in the courts; instead they could conceivably treat the regulations as invalid but the principles as unchanging.”
(It’s probably worth pointing out that this is a circuit court opinion, and while the D. C. Circuit is often central to federal administrative law, this opinion is not binding on other circuits.)
FOREST SERVICE
Court decision in Western Watersheds Project v. Vilsack (D. Wyoming)
On October 28, the 10th Circuit Court of Appeals reversed the 2020 plan amendment for the Thunder Basin National Grassland, comprised of 553,000 acres of USFS-managed land and more than one million acres of land that is either state or privately managed. The amendment was intended to change management of habitat for black-tailed prairie dogs. After several past changes in the plan to improve protection of the prairie dogs, this amendment would relax some of that protection, following a boom and bust (resulting from plague) in prairie dog population. It changed the focus of a key management area from reintroduction of black-footed ferrets (which are endangered species dependent on prairie dog colonies that are being reintroduced to suitable grasslands), to managing the prairie dog population (including to better control population booms), and it reduced the size of this management area. It also relaxed restrictions against lethal control of prairie dogs.
Plaintiffs argued that the reduced opportunity for black-footed ferret reintroduction was not in compliance with NEPA, ESA and NFMA, but the district court found no violations. The NFMA claims were not raised on appeal, and the circuit court found that the amendment process violated NEPA, and that it could not rule on the ESA claim in light of the NEPA flaws. The circuit court disagreed with the district court’s conclusions about each of the NEPA issues.
In a 2009 amendment, the Forest Service “specifically recognized that the combined effects of poisoning and recreational shooting could prevent prairie dog population recovery.” In a 2013 study, the Forest Service found, “[p]oisoning and plague, along with other known threats, can each have a significant impact to prairie dogs. However, when these threats are combined, eradication of entire populations of prairie dogs is possible.” The Forest Service based a 2015 amendment decision to further protect prairie dogs on this conclusion.
The population grew to well beyond the desired acreage in 2017, then crashed in 2018. For the 2020 amendment, all action alternatives reduced the area to be managed for prairie dogs and increased the availability of poisons and recreational shooting of prairie dogs.
The court held that, “despite recognizing its obligation under the ESA to contribute to recovery of endangered and threatened species, and the particular need to support black-tailed prairie dog populations on Thunder Basin to enable the reintroduction of the endangered black-footed ferret, the USFS’s Purpose and Need statement limits the consideration of alternatives to those that will “increase the availability of lethal prairie dog control tools.” Therefore, “the USFS has defined the Purpose and Need statement so narrowly as to ‘preclude a reasonable consideration of alternatives…’”
As for the range of alternatives, the court found that the record “does not provide an adequate explanation in its discussion of why expanding lethal control options was the only viable choice,” such as infeasibility of other options. The court also found no adequate explanation for rejecting alternatives that would have increased the acreage of prairie dog colonies or reduced livestock grazing. With regard to the no-action alternative, the court said, “USFS fails to provide an adequate explanation as to why it rejected those alternatives” (referring to the existing protection measures). In sum the court found, the Forest Service violated NEPA by “failing to consider alternatives that ensured conservation …” (an “overarching” purpose).
The court also faulted the Forest Service for failing to discuss the combined effects of poisoning, plague, and recreational shooting on prairie dog populations in relation to its previous position that these things in combination could result in eradication of the prairie dogs. While the Forest Service looked at effects individually, and documented an overall conclusion that “all activities combined” are “not likely to result in a loss of viability in the planning area,” there was no analysis or discussion of why. Moreover, in the context of the agency’s prior positions, “This ‘[u]nexplained conflicting finding[] about the environmental impacts’ of the 2020 Plan Amendment violates the APA.” The court notes in a footnote, “It may be true that, in light of information learned during the 2017-18 plague outbreak, the concerns expressed in prior years regarding the combined impacts of plague, poison, and recreational shooting are no longer scientifically sound. But this is never explained in the FEIS or ROD.”
There was a dissenting opinion in the case. The court’s decision was remanded to the district court to determine whether the amendment decision should be vacated. The article includes a link to the opinion.
Court decision in Los Padres Forest Watch v. U. S. Forest Service (9th Cir.)
On November 12, the circuit court affirmed a district court holding in July that upheld the Reyes Peak Forest Health Project on the Los Padres National Forest. The decision was based on Categorical Exclusion (e)(6): “Timber stand and/or wildlife habitat improvement activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction.” According to the brief opinion from the court (a link is included in this article):
“Specifically, plaintiffs argue that the Forest Service did not properly evaluate the project’s potential impact on religious or cultural sites, the removal of large trees in the Sespe-Fraizer Inventoried Roadless Area, and the existence of potential wilderness. But the agency properly analyzed each of these resource conditions as required by 36 C.F.R. § 220.6(b), so the Forest Service’s determination that there are no extraordinary circumstances that preclude it from relying on CE-6 was not arbitrary or capricious.”
This case was discussed previously here.
New lawsuit: American Whitewater v. U. S. Army Corp of Engineers (W.D. North Carolina)
On November 18, American Whitewater and American Rivers sued to stop work by CSX Transportation in the Nolichucky River Gorge to repair damage to its railroad from flooding in September. Defendants are the Army Corps of Engineers, the Forest Service and the Fish and Wildlife Service. Plaintiffs object to the use of rock from the river channel as riprap. In allowing CSX’s ongoing work, the lawsuit alleges, the three federal agencies have collectively violated multiple environmental protection laws, including the Rivers and Harbors Act of 1899, the Administrative Procedure Act, the Clean Water Act, the Organic Act of 1897, the National Forest Management Act of 1976, the National Environmental Policy Act and the Endangered Species Act. The complaint is here: (1) 2024-11-18 Complaint
Court decision in Blue Mountains Biodiversity Project v. U. S. Forest Service (9th Cir.)
On November 18, the circuit court affirmed the lower court’s summary judgment in favor of the Malheur National Forest’s Camp Lick Project. The court found that “conditions in the Project Area necessitated a site-specific amendment, above and beyond conditions in the Malheur National Forest (“Forest”) as a whole,” which justified thinning stands to promote old growth. The Forest also complied with NEPA regarding cumulative effects, an EIS was not required and a supplemental information report adequately addressed new information.
New lawsuit (D.C. Wyoming)
An adjacent property owner has filed a lawsuit to stop the Britania land exchange on the Medicine Bow-Routt National Forest because it would cut off land used by the public, alleging violations of NEPA public participation and other requirements. The land to be conveyed to private parties is, and provides access to, highly sought hunting activities, especially for bighorn sheep. The land acquired would be more accessible to the public.
BLM
New lawsuit: Center for Biological Diversity v. Haaland (D. Nevada)
On October 31, Center for Biological Diversity, Great Basin Resource Watch and Western Shoshone Defense Project sued the Department of the Interior, BLM and U. S. Fish and Wildlife Service over approval of the Rhyolite Ridge Lithium/Boron Mine in Nevada. The complaint alleges that the decision:
“… among other things: failed to ensure that the Project will not jeopardize the continued existence of Tiehm’s buckwheat or adversely modify its critical habitat, as required under the ESA; failed to prevent unnecessary and undue degradation of the public lands, as required under FLPMA; failed to take a “hard look” at the Project’s environmental impacts, as required under NEPA and FLPMA; and relied on vague, generalized, and insufficiently developed minimization and mitigation measures, in violation of the ESA, NEPA and FLPMA.”
“The end use of minerals, whether for EV’s or solar panels, does not justify this disregard of Indigenous cultural areas and keystone environmental laws,” said John Hadder, director of Great Basin Resource Watch, in a statement. We’ve talked about the Tiehm’s buckwheat a few times, such as here.
Preliminary injunction in Hualapai Indian Tribe v. Haaland (D. Arizona)
On November 5, using language similar to the plaintiffs in the case above, the district court extended its temporary restraining order by granting a preliminary injunction against Phase 3 of the Sandy Valley Exploration Project that would explore for lithium on BLM land surrounding a hot springs the Tribe holds sacred.
“Lithium exploration is an important public interest at a time when the United States is striving to transition to renewable sources of energy. … However, this interest does not outweigh the potential damage the Phase 3 drilling project may cause to Ha’Kamwe’, which is central to the Hualapai Tribe life-way. Nor does it permit a federal agency to short-cut its regulatory consultation obligations or reasoned evaluation of the effects of its undertaking.”
The court found likely violations of the National Historic Preservation Act and NEPA’s requirements for a “hard look” at effects on groundwater and range of alternatives. The article includes a link to the opinion.
New lawsuit: Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Oregon)
On November 19, Klamath-Siskiyou Wildlands Center, Cascadia Wildlands and Oregon Wild filed a lawsuit against the BLM’s Last Chance Timber Sale, which would include commercial logging in “late-successional reserves” to promote the development of northern spotted owl habitat. The complaint claims violation of FLPMA’s requirement for consistency with the resource management plan and that the EA violates NEPA for failing to disclose various effects. Here’s a short article.
ENDANGERED SPECIES
- Barred owl shooting
New lawsuit: Animal Wellness Action v. U. S. Fish and Wildlife Service (W.D. Washington)
On October 31, Animal Wellness Action and the Center for a Humane Economy filed a lawsuit in U.S. District Court in Washington state challenging a plan by the U.S. Fish and Wildlife Service to kill as many as 450,000 barred owls over the next 30 years. They allege violations of NEPA with regard to the impacts and range of alternatives.
New lawsuit: Friends of Animals v. Morrison (D. Oregon)
On November 19, Friends of Animals filed a similar lawsuit in the District of Oregon. These plaintiffs disagree with viewing the barred owl is an invasive species. This release from the plaintiffs includes a link to their complaint.
Court decision in WildEarth Guardians v. Bucknall (D. Montana)
On November 7, the district court held that, “plaintiffs are correct that the [environmental assessment] failed to take a ‘hard look’ at the effects of Montana’s predator damage and conflict management on grizzly bears and an [environmental impact statement] is required.” However, the court permitted grizzly bears to be killed while Wildlife Services prepares an EIS for its Montana program within two years. Plaintiffs want them to address the effect on connectivity between recovery zones. The article includes a link to the opinion.
OTHER
Court decision in Horses of Cumberland Island v. Haaland (N.D. Georgia)
On November 8, the district court dismissed a case seeking removal of feral horses from Cumberland Island National Seashore because for the wellbeing of the horses and the ecosystem. The court found no agency action that could be reviewed.
It’s not too soon to start thinking about this – here’s one forecast: “The second Trump administration’s federal lands agenda is widely expected to promote fossil fuels development and reverse Biden administration conservation efforts, moves environmental groups say they’ll litigate at every opportunity.”
Re Marin Audubon Soc’y v. FAA,
How many other federal regulations lack the express Congressional authorization that the DC Circuit says is required by the separation of powers doctrine. Portions of the FS’s special uses regulations (36 CFR 251 Subpart B) come to mind. The statutory authority cited for some regulatory provisions does not explicitly authorize or require promulgation of federal regulations.
Unless reversed or significantly limited by an en banc rehearing, how much chaos and administrative delay this opinion will create for agencies attempting to decipher their NEPA responsibilities. The Forest Service’s NEPA regulations which explicitly describe their purpose as “establishing procedures for compliance with … the Council on Environmental Quality (CEQ) regulations… .”
It will be interesting to see if SCOTUS addresses the CEQ regulations in the forthcoming oral arguments (December 10th) and opinion in the NEPA case Seven County Infrastructure Coalition v. Eagle County.
I wonder if these developments portend the end of the action-forcing provisions of §102.
It could well change how the action forcing provisions are interpreted, obviously, but how would it portend the end of those, given the relatively clear requirements of section 102? There are a number of now-codified provisions of NEPA as part of recent legislation, which includes definitions among other things adopted, ultimately, from CEQ regs. I suppose I read this as more narrowly focused on the function of CEQ and a narrow interpretation of sections 202, 204, 205. Practically, there’s certainly propensity for a cascade of agency by agency changes, but the end of action forcing provisions, meaning the end of requirements to produce a statement or assessment before acting, I doubt.
The seven county case and ‘but-for’ causation question could be more interesting in terms of the philosophy of NEPA and ultimately the range of what an analysis accounts for.
A and Jim, between this decision, the seven county case, the new CEQ NEPA regs, and the more pestiferous clauses of the Fiscal Responsibiiity Act (which our friend Ted Boling called ” a full employment program for environmental litigants”, I have no clue how it will all play out, and I doubt whether anyone else does. If I were in NEPA now, I would move into another line of work for 10 years or so.
My only wish is that Whomever the policy makers will end up being, those folks would listen to the voices of NEPA practitioners.. in and out of government.. in addition to others. So far, this has not been a part of policy making and discussion as far as I can tell. And of course courts are not a good place for wise policy-making.
Any recs for where to go from NEPA? Asking for a friend…
Contracting? (in some field, or another.)
When I was in Timber Sale Administration, I felt that my hard work had a positive impact on my projects. It was always rewarding to see the ‘finished product’, after all the work on the ground was done.
There are certainly other kinds of contracting, with more likely on the way. Fire is heavy into that, for sure. Might be an interesting gig.
(Unless the Forest Service is abolished. *fake-smirk* )
Since courts are not a good place for wise policy-making, you must think Chevron (judicial deference to agency expertise) was properly decided and Loper (little/no judicial deference to agency expertise) is poor “policy.” I agree.
And, yes, given the administrative uncertainty and chaos soon to result from federal courts nullifying NEPA regulations, current NEPA practitioners – and agency line officers – may want to protect their sanity and find other work.
Loper only refers to “things where Congress is not clear” which could be read as a fairly small subset of things. I don’t think it fits most of FS litigation.
Another way of looking at the changes is that it is going to be an opportunity for learning and experimentation, and as I say about planning “the pay’s the same” and “if you’re not the lead mule, the scenery never changes.” Perhaps some people thrive on change more than others. Personally, I worked on many projects and rules that never happened/are not in place due to factors beyond my control.
Just like planting trees, we need to plow ahead doing what has worked, NEPA-wise, until circumstances tell us that it’s not working and we try something else.
DOGE + 119th Congress = end of NEPA’s action forcing provisions