In Lands Council v. McNair, the Ninth Circuit Court of Appeals issued a remarkable opinion that significantly changes how federal courts in the Western United States will review the decisions of federal agencies in environmental and natural resources cases.
The decision is especially important because it was issued by the court “en banc,” meaning that eleven Ninth Circuit judges decided the case, instead of the usual three-judge panel. An en banc decision sets precedent for all future decisions by Ninth Circuit judges. En banc panels are selected from the court’s twenty-seven active judges. The en banc panel includes the Ninth Circuit’s Chief Judge and ten other judges drawn by lot. The eleven judges, who decided this case, included five judges appointed by former President Clinton, and six judges appointed by Republican presidents.
The decision involved a challenge to Forest Service management activities in Idaho. The Forest Service developed a proposal to restore forest health and habitat through a combination of selective timber harvesting, controlled burning, and other proactive measures. The central factual issue in the case was whether the Forest Service’s approach would provide suitable habitat for the flammulated owl, which prefers old-growth forests. The Forest Service conducted modeling on the effects of the proposal on the owl and its habitat, relied on studies from elsewhere, and undertook limited onthe-ground reconnaissance.
Project opponents convinced a three-judge panel to reverse the Idaho federal district court and enjoin the project on NEPA and other grounds. The Forest Service petitioned the Ninth Circuit for en banc review. The court granted en banc review, and then issued a unanimous decision reversing the three-judge panel.
First, the court clarified that it is fundamentally an agency responsibility not the court’s to determine appropriate methodologies (e.g., on-the-ground analysis versus modeling) for analysis of technical issues. Specifically, the court overruled past precedent holding that Forest Service science methodology must be “verified with observation” and with “on the ground analysis.” The court determined that this obligation created a requirement not found in any relevant statute or regulation, and “defied well-established law concerning the deference we owe to agencies and their methodological choices.”
Second, the court clarified the role of reviewing courts in assessing scientific uncertainty in the NEPA process. The Forest Service relied, in part, on a study in which a single flammulated owl was found in an area after logging and burning. The three-judge panel was dubious about whether the Forest Service should be allowed to rely on this “single owl” study. Its opinion effectively required the Forest Service to prove, through robust on-the-ground work, that its proposal for forest management would, in fact, provide habitat for the owl. The en banc court, on the other hand, said that it is “within the Forest Service’s expertise, not ours, to determine the significance [of a single owl siting].” The court further stated that NEPA does not require the courts to “decide whether an EIS is based on the best scientific methodology available” and found that the Forest Service’s discussion of methodology and limitations was sufficient for purposes of NEPA.
Last, the court addressed the standard for issuance of an injunction. When an environmental group files a lawsuit challenging a project, it often asks the court to issue an injunction to stop the project while the lawsuit is decided. In deciding whether to issue an injunction, the court must consider the “balance of hardships” that will result if the project is stopped. In this decision, the Ninth Circuit went out of its way to state that environmental harm does not trump other considerations (“we decline to adopt a rule that any potential environmental injury automatically merits an injunction.”) The court said that potential environmental injury must be balanced against other factors, including economic issues, jobs, and the agency’s objectives.
In terms of significance, this unanimous decision sends a strong signal to federal district judges, and to future panels of the Ninth Circuit, that courts may not second-guess an agency’s methodology on technical issues. The court effectively acknowledged that, in past cases, it was creating “judgemade law” by forcing agencies, such as the Forest Service, to undertake measures that were not required by statute or regulation, but which the judges considered desirable or necessary.
For project development in Alaska, the court’s discussion of the injunction standard may prove to be one of the most valuable aspects of the decision. Many practitioners have felt that even if the merits favored the government agency’s decision, the Ninth Circuit would enjoin a project on the view that the threat of environmental harm trumped all other considerations. Since an injunction often may be viewed by the relevant federal agency as a clear message to go back to the drawing board, its issuance can lead to years of delay and undermine the economics of a project. The Ninth Circuit’s clear, updated direction on the role of environmental issues in the balancing of harms is good news and should result in more Alaska projects clearing the critical injunction phase in project permitting.
Eric Fjelstad is an attorney with the law firm Perkins Coie LLP. He serves on the RDC Executive Committee.
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