Bulletin of Developments in Environmental and Administrative Law

The Ninth Circuit (McKeown, Paez, Desai) affirmed in part and reversed in part the dismissal of an action alleging state-created danger, nuisance, and takings claims arising from Seattle’s cessation of certain policing services in connection with protests sparked by the murder of George Floyd. That cessation of services did not result in either a per se or right-of-access taking given that the plaintiff businesses did not allege any affirmative government invasion of their own property or assert an interest protected under state law.

The Fourth Circuit (Gregory, Harris, Richardson) affirmed the dismissal of a takings claim against the City of Baltimore based on the City’s acquisition of private land that it never successfully redeveloped. The plaintiffs—property owners who live adjacent to the project area—had standing notwithstanding the fact that their own properties were not taken, as the City’s condemnation of properties in their neighborhood diminished their property values. But the fact that their own property was not condemned doomed their takings claims on the merits.

The Court administratively stayed—until 5 pm EDT on May 11—a Fifth Circuit order staying the Food & Drug Administration’s 2023 approval of the online prescription of and mail delivery of mifepristone (see below).

The D.C. Circuit (Pillard, Walker, Edwards) affirmed on different grounds the dismissal of a suit claiming that the Environmental Protection Agency failed to address risks from perfluorooctanoic acid as Section 4(f) of the Toxic Substances Control Act requires. The plaintiff associations lacked standing because neither association plausibly alleged that it had either members or an equivalent—an implicit requirement for associational standing—and declarations the associations submitted for the first time on appeal could not be considered.

The Fifth Circuit (Southwick, Duncan, Engelhardt) stayed, under 5 U.S.C. § 705, the Food & Drug Administration’s 2023 approval of the online prescription and mail delivery of mifepristone pending the appeal of a district court decision that had agreed that the plaintiffs’ challenge was likely to succeed but declined to stay the approval based on the equities. Louisiana had standing to bring the challenge because the approval violated its sovereign interests, in light of a state law that banned administering, prescribing, procuring, or selling mifepristone. Louisiana also identified expenditures it paid in Medicaid costs for two women who had experienced complications from out-of-state mifepristone. As to the stay, the FDA did not contest the merits factor; the irreparable injury factor overlapped with the standing inquiry; and the FDA lacked an interest in enforcing an unlawful action.

The First Circuit (Aframe, Lynch, Dunlap) largely affirmed the district court’s rejection of an Appointments Clause challenge to a National Marine Fisheries Service fishery management rule based on a hybrid private-public council’s role in developing the rule. Although neither the President nor the agency head appoints all members of the council, and the council’s involvement in developing the rule’s content was significant, the council ultimately acts only as an advisory body and any legal injury to the plaintiff fishermen stemmed from the Service’s promulgation of the final rule.

The Federal Circuit (Moore, Chen, Stark) affirmed the Court of Federal Claims’ award of compensation to Indiana landowners based on the government’s exercise of its rails-to-trails authority. The landowners had owned land adjacent to rail corridors and claimed to also own the land underlying the rail corridors themselves. The landowners were correct that the railroad had possessed only easements over the rail-corridor lands (as opposed to ownership in fee simple). Because fee simple title would have otherwise reverted to the landowners once the railroad discontinued service, the government’s conversion of the land for public trail use constituted compensable takings.

The First Circuit (Barron, Aframe, Dunlap), in a per curiam order, stayed a preliminary injunction of New Hampshire’s repeal of its motor vehicle emissions inspection and maintenance program. The New Hampshire Commissioners seeking a stay were likely to prevail on the merits because the citizen suit plaintiff failed to allege cognizable violations under 42 U.S.C. § 7604(a)(1): New Hampshire’s communication that it was ending its vehicle inspection program and intent to cancel its contract with a vendor that provided such inspector services did not violate any Clean Air Act regulation or State Implementation Plan. Further, the plaintiff’s claims were wholly prospective, and the CAA citizen suit provision authorizes challenges only to ongoing violations. The court acknowledged, but did not address, the argument that the CAA citizen suit provision bars suits against states as regulators. New Hampshire would face irreparable injury if forced to continue enforcing the program and the equities otherwise were in its favor.

The Supreme Court of Ohio held that a state order suspending the operation of two saltwater-injection wells following two earthquakes was not a compensable taking. The well operator failed to show that the suspension order deprived it of all economically beneficial use of its leasehold, so there was no per se taking. Nor was there a regulatory taking under Penn Central because, among other things, the operator knew an earthquake could cause the state to terminate the wells. Thus, its “investment-backed expectations cannot [have been] diminished by other government actions that fell short of a [termination] order.”

The Superior Court of Washington, King County, declined to dismiss two Tribal lawsuits accusing fossil fuel companies of concealing climate change risks associated with their products. The court adopted proposed orders (1; 2) denying the companies’ motions to dismiss, which said the Tribes’ state-law claims were not preempted by federal law; that the claims did not invoke non-justiciable political questions; that the claims were timely; that the claims had been sufficiently alleged; and that the court had personal jurisdiction over the defendants. However, the court did grant a separate motion to dismiss filed by ConocoPhillips, concluding that the Tribes had not sufficiently alleged specific personal jurisdiction over the company.

The Ninth Circuit (McKeown, Friedland, Sung) affirmed on different grounds a district court’s dismissal of claims alleging that a Hawaii agency’s failure to provide statewide voter registration data violated the public inspection provision of the National Voter Registration Act. The plaintiff had standing because the total denial of access to information whose disclosure is required under a public disclosure or sunshine provision causes an Article III injury in fact notwithstanding the Supreme Court’s decision in TransUnion (and the Third Circuit’s recent contrary conclusion). Under Akins, the organizational plaintiff was not required to show that the denial of information interfered with its core business activities because it sought to vindicate its right to receive information under a sunshine provision. And its NVRA claim was likewise both constitutionally and prudentially ripe notwithstanding the Hawaii agency’s suggestion that the plaintiff seek the desired information from county clerks. But the claim failed on the merits as a matter of statutory interpretation.

The Supreme Court of Maryland held that a county ordinance regulating ghost guns near places of public assembly did not, among other things, effect an unconstitutional taking. The law did not require owners to surrender ghost guns in or near places of public assembly. It “simply required that they either keep them in other locations or get them serialized.” And the petitioners never explained how a serialization requirement could amount to a taking of private property for public use.

The Ninth Circuit (Owens, Bumatay) affirmed the dismissal for lack of subject-matter jurisdiction of a Resource Conservation and Recovery Act citizen suit brought by the operator of a California landfill against two California agency heads over alleged groundwater contamination arising from state facilities (whose hazardous waste interfered with the landfill operator’s remediation efforts). The operator failed to establish a “fairly direct” connection between the defendants and the alleged violations as required under Ex parte Young. Judge Gould dissented, reasoning that the defendants’ supervisory power sufficed.

Dickinson v. Trump, 2026 WL 1133353, and Reach Cmty. Dev’t v. U.S. Dep’t of Homeland Sec., 2026 WL 1133351 (9th Cir. Apr. 27, 2026). The Ninth Circuit (Lee, Tung) stayed pending appeal two injunctions enjoining the government from deploying non-lethal crowd control munitions to disperse demonstrators at a Portland Immigrations and Customs Enforcement facility. As to an injunction premised on a putative class’s First Amendment retaliation claim, the government made a substantial showing that it would succeed on the merits and that the district court’s injunction was overbroad. Among other things, it flouted CASA’s requirement that relief be limited to the parties, and broader relief was not necessary to provide complete relief to the named plaintiffs. Further, the court’s provisional class (of all individuals who wished to or will nonviolently protest at or report on activities at the Portland ICE Building) was improperly certified because it did not meet Rule 23(a)’s commonality requirement. As to a second injunction, the district court erred in concluding that the plaintiffs, residents of a nearby apartment complex, had a constitutional substantive-due-process right to be free of exposure to toxic chemicals. Judge de Alba concurred in the first order to the extent it concluded that the plaintiffs had standing, but otherwise dissented, reasoning that the government forfeited its arguments for a stay of the district court’s injunction or pending appeal by failing to make those arguments to the district court.

Dickinson v. Trump, 2026 WL 1133353, and Reach Cmty. Dev’t v. U.S. Dep’t of Homeland Sec., 2026 WL 1133351 (9th Cir. Apr. 27, 2026). The Ninth Circuit (Lee, Tung) stayed pending appeal two injunctions enjoining the government from deploying non-lethal crowd control munitions to disperse demonstrators at a Portland Immigrations and Customs Enforcement facility. As to an injunction premised on a putative class’s First Amendment retaliation claim, the government made a substantial showing that it would succeed on the merits and that the district court’s injunction was overbroad. Among other things, it flouted CASA’s requirement that relief be limited to the parties, and broader relief was not necessary to provide complete relief to the named plaintiffs. Further, the court’s provisional class (of all individuals who wished to or will nonviolently protest at or report on activities at the Portland ICE Building) was improperly certified because it did not meet Rule 23(a)’s commonality requirement. As to a second injunction, the district court erred in concluding that the plaintiffs, residents of a nearby apartment complex, had a constitutional substantive-due-process right to be free of exposure to toxic chemicals. Judge de Alba concurred in the first order to the extent it concluded that the plaintiffs had standing, but otherwise dissented, reasoning that the government forfeited its arguments for a stay of the district court’s injunction or pending appeal by failing to make those arguments to the district court.

The D.C. Circuit (Pillard, Childs) affirmed class certification in a challenge to a presidential proclamation and its implementing guidance that set new removal procedures supplanting those in the Immigration and Nationality Act, and affirmed a judgment declaring the guidance unlawful, vacating it, and enjoining agency officials from carrying out those removal procedures. Even assuming that courts cannot order classwide declaratory or injunctive relief to a class that includes persons who may lack Article III standing, the district court’s class definition complied with Article III. On the merits, although the INA contains a provision allowing the President to suspend the entry of “any aliens or class of aliens” detrimental to the United States, it does not contain a provision authorizing suspension of removal procedures. Statutory context and historical practice confirm that such authority does not exist. Judge Walker concurred in part and dissented in part because, among other things, the class certification decision improperly allowed relief to plaintiffs without standing.

The en banc Fifth Circuit vacated a preliminary injunction that prevented the enforcement of a Texas statute adding two state offenses that track two federal criminal provisions addressing unlawful entry and reentry into the United States. Judge Smith (writing for 9 other judges) held that the nonprofit plaintiffs, who provide legal services to noncitizens, could not establish standing based on an increased demand for their ordinary legal representation. After Alliance for Hippocratic Medicine, a legal-services organization does not have standing merely because a new law or regulation requires it to understand the legal change, adjust resources, or increase the degree or scope of legal representation. As for the county plaintiff, its claim that the Texas law would erode its residents’ trust in county government did not raise a cognizable Article III injury. Judge Ho concurred to note his view that Texas was exercising its power to engage in war in response to an invasion. Judge Oldham (joined by 6 judges) concurred to respond to the dissents’ views on conflict preemption. Judge Richman dissented (joined by 4 judges in full and 2 in part) to explain why the preliminary injunction was correctly entered.

The Tenth Circuit (Eid, Kelly, Carson) affirmed in part and reversed in part a district court’s denial of a preliminary injunction in a Second Amendment challenge to a Colorado law prohibiting the purchase, sale, transfer, and possession of unserialized firearms, firearms frames and receivers, and firearms parts kits. As relevant here, the plaintiffs’ challenge to the parts kits prohibition was ripe, notwithstanding the existence of a federal regulation separately precluding plaintiffs’ activities. That regulation is relevant to the redressability analysis for standing, but here, the plaintiffs represented that they wanted to engage in conduct that would be barred under the Colorado law but not the regulation.

The Supreme Court of California held that courts should exercise their own independent judgment when reviewing the Coastal Commission’s determination that, pursuant to a county’s local coastal program, the Commission has appellate jurisdiction to review an application for a coastal development permit. Local coastal programs are enacted laws, so the established standard of review for questions of law applies. More broadly, when two entities (here, the Commission and the county) disagree as to the proper interpretation of a law they both administer (here, the local coastal program), a court should begin its inquiry by applying the deference analysis outlined in Yamaha Corp. of America v. State Board of Equalization, 960 P.2d 1031 (Cal. 1998), to each entity’s interpretation. If the factors do not clearly favor either side, the court should defer to neither side’s interpretation.

The Supreme Court of Kentucky held that private records exclusively owned and controlled by individual members of the Kentucky Department of Fish and Wildlife Resources Commission were not subject to the state’s Open Records Act. The Commission could not act except through public meetings and votes. Accordingly, when Commission members exchanged private messages, they were not doing anything that could constitute binding Commission action. While it is possible that government officials could, in the future, skirt the Open Records Act by using private devices to conduct government business, that concern was the legislative branch’s responsibility.