I took a look at what I think is the current draft of the bipartisan Senate FOFA bill, introduced by Curtis, Sheehy, Padilla, and Hickenlooper, while I have many questions abaout how it’s supposed to work, the section on litigation stuck out to me as needing some interpretation from our legal friends.
Questions: 1) How different is this from the current approach?
2) Do judges usually think plaintiffs can suffer “irreparable injury” from fuel treatment projects?
3) The “public interest” considerations includes the “likelihood that the fireshed management project will achieve the stated purpose of the fireshed management project”. Jon showed us yesterday that at least one judge seems to think that treatments may not achieve the purpose (or that BLM didn’t adequately address the scientific counter-arguments). So it seems like judges will have to weigh in on whether a project will achieve the stated purpose- but maybe that means the judge weighs in on whether the agency adequately wrote about whether it would achieve the stated purpose? Is the judge making a call on whether it will, or whether the documentation was adequate to determine whether it will, or both, or neither?
4) What is a vacatur, and how does it apply to fuels projects, and in what sense this would be a change?
Subtitle C—Litigation Reform
15 SEC. 121. COMMONSENSE LITIGATION REFORM.
16 (a) DEFINITIONS.—In this section:
17 (1) AGENCY DOCUMENT.—The term ‘‘agency
18 document’’, with respect to a fireshed management
19 project, means a record of decision, decision memorandum, environmental document, or programmatic
21 environmental document.
22 (2) COVERED AGENCY ACTION.—The term
23 ‘‘covered agency action’’ means—
24 (A) the establishment of a fireshed management project by an agency;
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1 (B) the application of a categorical exclusion to a fireshed management project;
3 (C) the preparation of any agency document for a fireshed management project; and
5 (D) any other agency action as part of a
6 fireshed management project.
7 (3) NEPA TERMS.—The terms ‘‘categorical exclusion’’, ‘‘environmental document’’, and ‘‘programmatic environmental document’’ have the meanings given those terms in section 111 of the National
11 Environmental Policy Act of 1969 (42 U.S.C.
12 4336e).
13 (b) LIMITATIONS ON JUDICIAL REVIEW.—
14 (1) LIMITATIONS ON INJUNCTIVE RELIEF.—
15 (A) TEMPORARY DELAY OF COVERED
16 AGENCY ACTION.—Notwithstanding any other
17 provision of law, in the case of a claim arising
18 under Federal law seeking judicial review of a
19 covered agency action, a court shall not issue a
20 preliminary injunction against such covered
21 agency action unless the court determines
22 that—
23 (i) subject to subparagraph (C), such
24 preliminary injunction is in the public interest;
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1 (ii) the balance of equities favors the
2 plaintiff;
3 (iii) the plaintiff is likely to succeed
4 on the merits; and
5 (iv) the plaintiff is likely to suffer irreparable injury in the absence of preliminary relief.
8 (B) PERMANENT LIMIT ON AGENCY ACTION.—Notwithstanding any other provision of
10 law, in the case of a claim arising under Federal law seeking judicial review of a covered
12 agency action, a court shall not issue a permanent injunction against such covered agency action, or an order to otherwise permanently limit
15 such covered agency action, unless a court determines that—
17 (i) subject to subparagraph (C), such
18 permanent injunction or order is in the
19 public interest;
20 (ii) the balance of equities favors the
21 plaintiff;
22 (iii) the plaintiff has suffered or will
23 suffer irreparable injury; and
24 (iv) no adequate remedy is available
25 at law.
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1 (C) PUBLIC INTEREST DETERMINATION.—
2 (i) IN GENERAL.—In determining
3 under subparagraphs (A) and (B) whether
4 a preliminary or permanent injunction
5 against, or other order with respect to, a
6 covered agency action is in the public interest, the considerations of the court shall
8 include—
9 (I) the purpose for which an 10 agency is undertaking the fireshed
11 management project relating to such
12 covered agency action;
13 (II) the likelihood that the
14 fireshed management project will
15 achieve the stated purpose of the
16 fireshed management project; and
17 (III) the short- and long-term effects of proceeding with the covered
19 agency action, as compared to delaying or limiting such covered agency
21 action, including the potential for significant increases in wildfire risk or
23 severity and significant threats to the
24 health of the ecosystem.
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1 (ii) WEIGHT OF PUBLIC INTEREST
2 FACTOR.—In determining whether to issue
3 any injunction or order under subpara4 graph (A) or (B), a court shall give signifi5 cant, but not necessarily dispositive, weight
6 to its consideration of whether such order
7 is in the public interest.
8 (2) REMAND.—
9 (A) IN GENERAL.—Notwithstanding any
10 other provision of law, in the case of a claim
11 arising under Federal law seeking judicial review of a covered agency action, if the court remands the matter to the agency, the court shall
14 remand with instructions to carry out, during
15 the 180-day period beginning on the date of
16 such remand, such additional actions as may be
17 necessary to redress any cognizable harm giving
18 rise to such claim.
19 (B) VACATUR.—
20 (i) IN GENERAL.—In remanding a
21 matter to an agency under subparagraph
22 (A), the court shall remand with vacatur
23 only if—
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1 (I) the seriousness of any deciencies in the covered agency action
3 weigh in favor of vacatur; and
4 (II) the court determines that
5 any disruptive consequences of
6 vacatur, including the short- and long term effects of vacating the covered
8 agency action or any part of such covered agency action, do not outweigh
10 the justification for vacatur.
11 (ii) CONSIDERATIONS.—In making the
12 determination described in clause (i)(II),
13 the court shall consider whether vacatur
14 would cause—
15 (I) any significant increases in
16 wildfire risk or severity, and
17 (II) any significant threats to the
18 health of the ecosystem.
19 (C) EFFECT OF REMAND ON AGENCY.—In
20 the case of a covered agency action subject to
21 remand without vacatur, or with partial
22 vacatur, pursuant to this paragraph, the agency
23 may—
24 (i) continue to carry out such covered
25 agency action, or such parts of the covered
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1 agency action as are not vacated, to the extent that doing so does not interfere with
3 any additional actions required pursuant to
4 subparagraph (A); and
5 (ii) use any format, as appropriate, to
6 correct an agency document (including a
7 supplemental environmental document,
8 memorandum, or errata sheet), provided
9 that such format is appropriate to the nature of the deficiency.
11 (3) PRESERVATION OF AUTHORITY.—Nothing
12 in this section alters, limits, or displaces the authority of a court to review a covered agency action
14 under section 706(2) of title 5, United States Code.
15 (c) LIMITATIONS ON CLAIMS.—Notwithstanding any
16 other provision of law, a claim arising under Federal law
17 seeking judicial review of a covered agency action shall be
18 barred unless—
19 (1) with respect to an agency document or the
20 application of a categorical exclusion noticed in the
21 Federal Register, such claim is filed not later than
22 150 days after the date of publication of a notice in
23 the Federal Register of agency intent to carry out
24 the fireshed management project relating to such
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1 covered agency document or application, unless a
2 shorter period is specified in such Federal law; or
3 (2) in the case of an agency document or the
4 application of a categorical exclusion not described
5 in paragraph (1), if such agency document or application is otherwise published or noticed, such claim
7 is filed not later than 150 days after the date that
8 is the earlier of—
9 (A) the date on which such agency document or application is published; and
11 (B) the date on which such agency document or application is noticed.
*******
I’ll take a stab – others please chime in!
1) One big difference is the modification of the traditional public interest test. The bill seems to state, in effect, that if the project would achieve its stated purpose, that tips the public interest against issuing an injunction. In other words, the bill would authorize the agency to partially define the public interest. That may be true to some extent now but the bill would make this more explicit.
Also, in assessing the public interest the bill would require a court to take into account the long-term effects of the agency not proceeding with the project. In short, the court would need to consider the possibility of a catastrophic fire sweeping through the watershed. Because of the provision described above, the court would also presumably need to assume that the project in question would have ameliorated the damage from the hypothetical future fire.
As discussed elsewhere, this kind of provision has been in pro-veg-management legislation for years. The concern is that courts have been too focused on the unavoidable short-term ecological damage from a fuels project while ignoring the long term harm if the project is not carried out.
2) The problem is that once a vertical tree becomes horizontal, that state of affairs is irreperable. But does that inflict judicially cognizable injury on the plaintiffs? Sadly, the answer is “it depends.” I don’t think judges “usually” hold that plaintiffs have established irreperable injury for a number of reasons, because these inquiries can be pretty fact specific.
The long-term provision discussed above plays in here. If the fuels project would inflict irreperable harm, wouldn’t a massive fire do so as well? What’s really going on here is that the bill is encouraging judges to assume that a big fire will indeed intersect with the treated area during the useful life of the treatment. OMB has been consistently skeptical of purported fuels project benefits precisely because it is highly skeptical of this assumption.
3) I think the “stated purpose” provision probably helps the agencies. As long as they can say the project would reduce the likelohood of significant fire damage to the project area, they’ll win under this factor. I agree that it’s not a slam dunk, and that there is a math quiz “show your work” aspect to this test, but the agencies should win on this point much more often than not.
Note how we see here another way in which the Loper Bright decision may have less of an effect than initially theorized. Loper Bright may have released judges from their Chevron irons, but provisions like section 121 of this bill this seek to stuff them back into the dungeon.
4) When a court remands a challenged agency action for further work by the agency, the court will sometimes vacate the action (cancelling it, essentially). The agency will thus be unable to proceed with any aspect of the project until it comes back to the court with acceptable modifications. The vacatur provisions of the bill would make it harder for judges to do this. Thus, even if a court held that an agency action was deficient in some way, the agency might be able to proceed with the action while it cleaned up its paperwork mess. Limiting courts’ power to vacate is a favorite hobby horse of the right and not confined to the land management context.
Thanks so much, Rich! This was extremely helpful. I guess when I think about #4, I guess the judge would have to think that a change in paperwork might change the decision itself and hence the project. That would be hard to guess in advance, I would think.
I’ll see if I can dig up a couple fo specific forest management examples of cases dealing with vacatur – I can imagine a situation where, for example, the project is to proceed in phases, and the agency’s problem solely involves a later phase, thus allowing the earlier phase(s) to proceed. But I’m making this up – I’ll try to see if anything like this has happened.
Great, thank you!!!
Courts already have to decide whether to vacate decisions or not, and there is caselaw precedent that informs their decisions on when to do that. Similar to the criteria for an injunction, this would put some statutory sideboards on that.
My impression is that one difference is that a remand without vacatur preserves the NEPA decision documents, as opposed to vacating those decision documents and requiring a restart of the NEPA process.
Here’s some background for courts’ vacatur decisions from a 2023 article:
“When courts review deficient agency action, the usual remedy is vacatur. But sometimes courts remand to the agency without vacating, guided by a two-factor test from Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission.2 The test balances the legal deficiencies of an agency’s action against the hardship that vacating the action may cause.3 (D.C. Cir. 1993). The proper way to strike that balance, however, has stirred up disagreement,4 raising in one petitioner’s words “perhaps the most significant question of administrative law that this Court has never addressed.”5 The disagreement has been especially pronounced in environmental cases,6 long a favored arena for Allied-Signal analysis.7 And now, biodiversity loss and climate change challenge courts to apply the test in the face of grave risks and extensive uncertainty. Approaches seem poised to vary widely.”
https://www.yalelawjournal.org/pdf/F7.SlottjeFinalDraftWEB_yz39r6j3.pdf
Indeed, “approaches seem to vary widely.”
Thanks for your insights on administrative law. I’d like to dig a little further into (2): “What’s really going on here is that the bill is encouraging judges to assume that a big fire will indeed intersect with the treated area during the useful life of the treatment. OMB has been consistently skeptical of purported fuels project benefits precisely because it is highly skeptical of this assumption.”
I assume that a judge’s decision will still have to be based on the administrative record, and that record will have to support any “assumptions” made by the agency. I wouldn’t say the court has to assume anything. I would hope to see the agency do a good job of explaining the degree of fire risk associated with the specific locations at issue and how a particular treatment effectively reduces that risk.
(3) “maybe that means the judge weighs in on whether the agency adequately wrote about whether it would achieve the stated purpose?”
That is the role of judges under the APA – reviewing the record that explains an agency decision in order to determine if the decision was arbitrary and capricious. Of course underlying an explanation void may be facts that wouldn’t support the agency conclusions. It’s also possible that two cases are sufficiently different ecologically to make it arbitrary to treat them the same way.