The Ninth Circuit Court of Appeals’ 10 Most Necessary Environmental Law Decisions of 2022
Climate Change, Water Rights, Environmental Justice & Federalism Issues Highlighted the Ninth Circuit’s Prodigious Environmental Docket This 12 months
I’ve shared in previous posts my view that the U.S. Court of Appeals for the Ninth Circuit is–after the U.S. Supreme Court–probably the most influential court within the nation in the case of environmental and natural resources law. That’s true for 2 related reasons: first, the sprawling Ninth Circuit encompasses nine different states (including California) and several other territories within the Western United States that together generate considerable environmental litigation. Second, the Ninth Circuit commonly produces more environmental law decisions that any of the opposite 12 U.S. Circuit Courts of Appeals.
This trend continued in 2022, with the Ninth Circuit issuing over 50 published environmental decisions. As we bid farewell to 2022, here to your consideration is my list of the ten most vital of those decisions, listed in chronological order. The cases profiled below involve issues that run the gamut from climate change to environmental justice, water rights, offshore oil drilling, environmental federalism, the National Environmental Policy Act, toxics regulation and enforcement, animal welfare law and the Endangered Species Act.
Navajo Nation v. U.S. Dept. of the Interior (2/17/2022)–On this high profile water law/environmental justice case, the Ninth Circuit ruled that the Navajo Nation could proceed with its “breach of trust” lawsuit against the Department of the Interior to challenge DOI’s alleged failure to contemplate the Nation’s as-yet-undetermined federal reserved water rights to the Colorado River Basin. The Court of Appeals rejected arguments by DOI and the states of Arizona, Colorado and Nevada that the Navajo Nation’s reserved water rights claim lacked any express basis in federal statute or treaty. (At a time when water from the Colorado River is at record low levels because of drought and climate change, the Nation’s claim of reserved and previously-unrecognized water rights complicates considerably the alarming water shortages the seven Colorado River Basin states, a number of Native American tribes and two nations are currently confronting.) But this litigation is removed from over: last month the U.S. Supreme Court granted review within the case, which the justices should hear and judge by the tip of June 2023.
Friends of Animals v. U.S. Fish and Wildlife Service (3/4/2022)–On this Endangered Species Act case, the Ninth Circuit ruled that the USFWS’s experimental “barred owl removal project,” which can incidentally “take” barred owls with the intention to protect listed spotted owl habitat, produced a “net conservation profit” for spotted owls and is due to this fact permitted under the ESA. The court also ruled that the experimental program didn’t require preparation of a latest environmental impact statement under the National Environmental Policy Act.
Friends of Alaska Nat’l Wildlife Refuges v. Haaland (3/16/2022)–Perhaps probably the most widely-publicized Ninth Circuit environmental decision this 12 months involved a conflict between wilderness preservation groups and a Native Alaskan Village searching for construction of a latest road to advertise its residents’ claimed health, safety and economic needs. A divided three-judge panel upheld Trump-era federal approval of a land exchange designed to facilitate construction of a road through Congressionally-designated wilderness inside Alaska’s Izembek National Wildlife Refuge. (The case gain notoriety partly because former President Jimmy Carter filed a friend-of-the-court temporary in support of the unsuccessful coalition of environmental group plaintiffs.) But–just like the Navajo Nation case discussed above–this litigation shouldn’t be concluded: last month, the Ninth Circuit granted en banc review of this decision, meaning it’s going to be reconsidered by an 11-judge panel of the court.
California Chamber of Commerce v. Council for Education and Research on Toxics (3/17/2022)–This Proposition 65 case from California involves the long-running legal and scientific controversy about whether acrylamide–a naturally-occurring chemical present in some foods and low–causes cancer. A divided Ninth Circuit panel ruled that given the robust disagreement amongst scientific experts over that query, the California Chamber of Commerce was prone to succeed on the merits of its claim that Proposition 65-mandated warnings on food products containing acrylamide violate the First Amendment of the U.S. Structure. Notably, the bulk went on to uphold an injunction prohibiting California’s Attorney General and people in privity from filing lawsuits to require Proposition 65 notices on food and beverage products containing acrylamide. The choice found that the injunction–the primary ever issued against California’s Attorney General, the principal public enforcer of Proposition 65–didn’t constitute an impermissible prior restraint under the First Amendment.
350 Montana v. Haaland (4/4/2022)–On this necessary National Environmental Policy Act/climate change decision, the Ninth Circuit ruled that the U.S. Department of the Interior violated NEPA by failing to supply a convincing statement as to how expected greenhouse gas emissions from a proposed coal mine expansion on federal lands–involving 190 million tons of GHGs, 0.44% of total GHGs emitted globally–was insignificant under NEPA. The court went on to seek out that DOI is required to make use of the social cost of carbon to quantify the project’s projected harm to the environment, and remanded the case to the district court to find out whether an environmental impact statement is required under NEPA for the mine expansion project proposal.
County of San Mateo v. Chevron Corp. (4/19/2022)/City & County of Honolulu v. Sunoco (7/7/2022)–These related decisions represent the most recent chapter within the long-running effort by state and native governments to pursue state law-based tort claims against fossil fuel corporations, searching for damages for the prices they’ve incurred in responding to the harm they and their constituents have allegedly suffered in consequence of climate change. The San Mateo case was the primary such lawsuit filed in what has turn out to be a national flood of related climate change litigation. While the California local government plaintiffs had filed their lawsuit in state court, the industry defendants attempted to remove the case to federal court, hoping for a more favorable judicial reception there. The Ninth Circuit, nevertheless, concluded that the defendants’ removal of the case to federal court was improper, and remanded it back to California state court for resolution on the case’s merits. Three months later, the Ninth Circuit reached the identical result and remanded the related Honolulu climate change lawsuit back to Hawaii state court.
Natural Resources Defense Council v. U.S. Environmental Protection Agency (4/20/2022)–In one other case involving Trump-era environmental regulatory decisions, the Ninth Circuit invalidated USEPA’s denial of NRDC’s petition to cancel EPA’s registration of glyphosate–a pesticide registered under FIFRA within the U.S. to be used in household pet products similar to flea collars. The Court of Appeals concluded that EPA’s decision to disclaim the petition was not supported by substantial evidence; that EPA failed to supply an inexpensive explanation for its decision; and that the Agency has made several arbitrary calculations in reaching its conclusions.
Assn. des Eleveurs de Canards v. Bonta (5/6/2022)–This animal welfare case involved an industry challenge to a California statute banning the sale in California of poultry products–primarily foie gras–resulting from the force-feeding of birds for purposes of enlarging their livers beyond normal size. The Ninth Circuit upheld the statute, rejecting the poultry industry’s constitutional arguments that the California law was preempted by the Federal Poultry Inspection Act and violated Dormant Commerce Clause principles. (This decision is considered one of many recent rulings by the Ninth Circuit upholding a wide range of California animal welfare laws; but that trend that could be imperiled by a pending U.S. Supreme Court case wherein similar constitutional arguments are being advanced by industry plaintiffs to challenge a separate California animal welfare law; I profiled that Supreme Court case in an earlier Legal Planet post.)
Environmental Defense Center v. Bureau of Ocean Energy Management (6/3/2022)–On this case brought by California environmental organizations and the California Coastal Commission, the Ninth Circuit held that the federal Bureau of Ocean Energy Management (a part of the U.S. Department of the Interior) violated the National Environmental Policy Act when it determined a federal proposal to permit offshore oil well stimulation treatments–including fracking–off the California coast would haven’t any significant environmental impacts. The court found that BOEM’s environmental assessment had didn’t take the requisite “hard look” at potential environmental consequences of fracking as required by NEPA, and that a full environmental impact statement was required before the project could proceed. The panel also concluded that BOEM further erred by failing to undertake consultation with federal wildlife agencies as required under the ESA, and similarly didn’t pursue “consistency review” of the project by the State of California as mandated by the federal Coastal Zone Management Act.
California State Water Resources Control Board v. Federal Energy Regulatory Commission (8/4/2022)–This Clean Water Act case involved the scope of the State of California’s authority under CWA section 401, which requires states to supply a water quality certification before a federal license or permit will be issued for activities that will lead to a discharge into intrastate navigable waters. The Federal Energy Regulatory Commission, which had received applications from California water agencies for hydroelectric water project licenses, ruled that California had waived its section 401 certification authority over those projects through undue delay and improper collaboration with the affected local water agencies. However the Ninth Circuit ruled against FERC, concluding that the State of California had not engaged in undue delay and had not improperly colluded with the affected water agencies. (This legal saga might not be over, nevertheless: the Ninth Circuit ruling is inconsistent with the 2018 decision of the U.S. Court of Appeals for the District of Columbia in the same section 401 case. The U.S. Supreme Court may determine to take up the difficulty to resolve the inter-circuit conflict.)
Glad Recent 12 months.