Ninth Circuit Broadens Intervention in NEPA Cases

Environmental Update

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The Ninth Circuit issued a unanimous en banc decision on January 14, 2011, overturning its so-called “federal defendant” rule, which had severely limited intervention in suits under the National Environmental Protection Act (NEPA) in the Ninth Circuit. The decision removes unique barriers for a private party or state or local government to join in the defense of the federal government’s NEPA analysis. See Wilderness Society v. United States Forest Service, No. 09-35200 (9th Cir. Jan. 14, 2011), available at: http://www.ca9.uscourts.gov/datastore/opinions/2011/01/14/09-35200.pdf.

NEPA requires federal agencies to follow certain procedures to evaluate the environmental impact of their actions in a wide array of circumstances. NEPA reaches federal actions with enormous consequences for private parties and state and local governments, such as grants of easements across federal land and federal licensing, permitting, and registration decisions. As a result, a lawsuit challenging the federal government’s NEPA analysis often implicates the interests of a non-federal entity whose project is ultimately at stake. Yet, under the Ninth Circuit’s federal defendant rule, only the federal government could defend its NEPA analysis. See, e.g., Churchill County v. Babbitt, 150 F.3d 1072, 1082, as amended by 158 F.3d 491 (9th Cir. 1998). Given that most NEPA challenges are originated by environmental advocacy groups, in many instances, the unique federal defendant rule prevented private parties and state and local governments from intervening as of right, no matter how strong their interest in the underlying federal decision.

In Wilderness Society v. United States Forest Service, the Ninth Circuit wholly abandoned its federal defendant rule. The Forest Service had adopted a national forest travel plan that designated certain roads and trails for motorized vehicle use. Conservation groups brought suit claiming that the agency violated NEPA by failing to prepare an Environmental Impact Statement and considering certain alternative plans. Recreation groups wanting to use the roads and trails sought to intervene to defend the NEPA analysis. After the district court dutifully applied the federal defendant rule and denied their motion to intervene, the recreation groups appealed. In an unusual move, the Ninth Circuit took the case en banc before a three-judge panel reached a decision.

The unanimous en banc court rejected the federal defendant rule as inconsistent with the Federal Rule of Civil Procedure 24(a)(2), which allows intervention by anyone with a significant, protectable interest relating to the property or transaction at issue. In all contexts besides NEPA, the court considers the practical and equitable implications of the case to determine whether a party has a sufficient interest to intervene. Indeed, intervention is routinely allowed to defend the federal government’s compliance with other environmental statutes, making the NEPA-specific federal defendant rule an anomaly. The court observed that its rule conflicted with the decisions of all but one of the other circuits that have considered the issue. Finally, the court noted that no fewer than thirty-seven amici curiae—including a coalition of national industry interests represented by Sidley Austin LLP—had filed briefs urging rejection of the federal defendant rule. The court remanded the case for the district court to apply the Rule 24(a)(2) intervention standard.

The decision has broad ramifications. NEPA actions are frequently filed in the Ninth Circuit’s boundaries, which encompasses a vast geographic area, large swaths of federal lands, incomparable natural resources, and nearly twice the population of any other circuit. Moreover, plaintiffs challenging federal actions with nationwide scope had an incentive to file suit in the Ninth Circuit, where the federal defendant rule likely barred would-be intervenors from defending the action. Previously, an applicant for a federal easement or permit likely could not intervene as a defendant, even though it may have participated in the NEPA process before the agency, and even though its investment was on the line. The Ninth Circuit’s decision removes that barrier. Now, Rule 24(a)(2)’s practical, equitable inquiry will govern, and parties with significant interests in a NEPA action should be able to intervene to defend their investments.

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