Bulletin of Developments in Environmental and Administrative Law

The Eighth Circuit (Colloton, Shepherd, Kobes) vacated a Department of Labor administrative order determining that BNSF unlawfully retaliated against a worker because the agency’s administrative proceedings violated the company’s right to a jury trial. The worker’s claim was analogous to a common law wrongful-discharge suit and sounded basically in tort. The public rights exception did not apply.

The Supreme Judicial Court of Massachusetts upheld a municipal taking of land on which Northeastern University planned to construct a new building. The town’s stated purpose for the taking—the conservation of the land for the “use and enjoyment of the general public”—was a “quintessential” public purpose. Though Northeastern’s proposed expansion had sparked public opposition, there was insufficient evidence in the record to suggest the municipality had exercised its eminent domain power in bad faith. This was especially so given Massachusetts courts’ “longstanding policy of deference to legislative judgments as to the necessity for a taking.” The fact that private parties had financed the taking also did not render the taking unlawful or undermine its stated public purpose.

The Supreme Court of North Carolina will hear argument on Tuesday, September 15 in this case presenting the question whether the State may bring a common-law action against chemical companies for PFAS contamination, even though those companies had already settled a near-identical lawsuit with the State’s environmental regulator.

The U.S. District Court for the District of Columbia (Howell) granted California’s motion for a preliminary injunction and denied the federal defendants’ motion to dismiss for lack of subject matter jurisdiction. California challenged the Environmental Protection Agency’s action to reclassify waivers that allowed the state to set more stringent vehicle emission standards than the EPA’s as “rules” subject to the Congressional Review Act (which was a step it took before submitting them to Congress for disapproval under the Act). The Act’s bar on judicial review does not preclude judicial review of the reclassification; California was likely to succeed on the merits of its claims because, among other reasons, the EPA did not explain why its reclassification was correct; and the other equitable factors supported relief.

The U.S. District Court for the Northern District of New York (Sannes) granted plaintiffs’ motions for summary judgment in their challenge to New York State’s Climate Change Superfund Act. The Act requires certain responsible parties to pay a proportionate share of a cost-recovery amount that reflects the state’s costs of adapting to climate change. The Second Circuit’s analysis in City of New York v. Chevron Corporation, 993 F.3d 81 (2d Cir. 2021), held that federal common law governed suits seeking to abate domestic greenhouse gas emissions but had been displaced by the Clean Air Act, which, in turn, preempted such suits. The Act cannot be distinguished from such suits, and so it is also preempted.

The U.S. District Court for the District of Oregon (Simon), after a bench trial, upheld Oregon’s Plastic Pollution and Recycling Modernization Act against a constitutional challenge. This law identifies “covered products,” and requires companies that produce those products to join a producer responsibility organization (PRO). The PRO is a private nonprofit that levies and collects fees on its members based on how much plastic waste those members direct into Oregon’s recycling system. Factual findings based on the trial showed that the Act does not violate either the dormant Commerce Clause or the Due Process Clause of the United States Constitution.

The D.C. Circuit (Srinivasan, Wilkins), in a per curiam order, denied the government’s motion to stay a decision setting aside the Department of Homeland Security’s attempt to modify the system for verifying immigration status. The government was not likely to succeed on the merits because the government had forfeited its main argument for a stay by raising it for the first time only after the district court granted summary judgment and, even if the court were to consider the argument, it was not likely to succeed. The government also likely failed to establish irreparable harm, and, in any event, any harm would be outweighed by the risk that certain citizens would have their voter registrations cancelled. Judge Katsas dissented because he would excuse the government’s forfeiture and find for the government on the merits.

The Ninth Circuit (McKeown, H.A. Thomas, Mendoza) denied a petition for review of a decision of the Board of Immigration Appeals dismissing an appeal from an immigration judge’s denial of cancellation of removal. Evidence of the petitioner’s ties to a military unit raised the persecutor bar, and the best reading of that bar was that it contained no implied duress defense. The Attorney General’s opinion that there was no such defense warranted little weight under Loper Bright, however, because it amounted to a change in interpretation with no rational explanation supplied for the switch.

The Third Circuit (Krause, Freeman, Roth) vacated a Section 401 water quality certification the New Jersey Department of Environmental Protection issued to a pipeline operator that sought to expand its pipeline network. The Department did not arbitrarily change in position from an earlier 2019 certification denial because the later application was materially different. But the Department acted arbitrarily and capriciously in two ways. First, the agency arbitrarily issued the certification before the company finalized its water quality monitoring and management plans. The state agency could delay review of those plans, but the material compliance terms needed to be in place before any work began. Second, the agency did not adequately explain its conclusion that the company’s dredging would comply with state water quality standards. Because those errors required vacatur, the court declined to address whether the state agency’s public participation procedures were unlawful.

The D.C. Circuit (Millett, Pillard, Wilkins) affirmed a preliminary injunction of the Internal Revenue Service’s disclosure of return information to Immigration and Customs Enforcement pursuant to a data-exchange procedure the IRS developed. The Center for Taxpayer Rights likely had standing to challenge the IRS’s procedure for supplying data to the IRS because the Center showed that the procedure would concretely harm its interests and cause a drain on its resources. In particular, fewer noncitizen taxpayers would interact with the Center’s pro bono tax clinic, because they would fear their status or location being shared with ICE. That reality, in turn, required the Center to spend more on outreach. The procedure was final agency action under the Administrative Procedure Act because it represented the consummation of the agency’s decision making and gave binding direction to the IRS official responding to ICE requests. On the merits, the procedure was likely contrary to law because it did not require the requester (ICE) to comply with statutory safeguards. An injunction thus was appropriate because the Center would otherwise suffer irreparable harm, and the public interest favored requiring the IRS to follow the statute. Last, Trump v. CASA did not undermine the relief granted because Section 705 also supported the order, and, in any event, the government failed to explain how the district court could have crafted narrower relief.

The Sixth Circuit (Clay, Murphy, Bloomekatz) affirmed a district court’s dismissal for lack of standing of a challenge to “off-premises” signs (i.e., those advertising off-site activities). The plaintiff advertiser failed to show that damages or an injunction would redress the expressive and economic injuries it alleged it suffered as a result of the off-premises ban, because separate regulations also barred its sign. The plaintiff could not avoid that problem by urging that the off-premises ban was inseverable from the other rules that barred its sign. And the plaintiff forfeited any other standing theories.

The en banc Fifth Circuit (Engelhardt) affirmed the dismissal of substantive due process claims brought by the residents of Jackson, Mississippi, relating to the City’s provision of unsafe water. There is no substantive due process right to be free from exposure to contaminated water, or to receive accurate information from public officials, and so the court affirmed the dismissal of Section 1983 claims rooted in those rights. Judge Haynes (joined by Judges Stewart, Higginson, Douglas, and Ramirez) concurred in part and dissented in part because she would have found those rights cognizable.

The D.C. Circuit (Rao, Walker, Randolph) affirmed in part and reversed in part a decision granting summary judgment to the Department of Health and Human Services in a pharmaceutical company’s challenge to a Department advisory opinion stating that the company’s proposed program would violate the Anti-Kickback Statute or Beneficiary Inducement Statute. The Anti-Kickback Statute conclusion was upheld. The statutory context supported interpreting the Anti-Kickback Statute’s prohibition on “induc[ing]” a person to purchase a federally reimbursable medical product broadly because otherwise the Statute’s list of safe harbors would be rendered superfluous. Because “text, context, and structure” required such an interpretation, lenity and constitutional avoidance could not dictate a narrower construction, especially where there was no constitutional problem to avoid. But the Department’s Beneficiary Inducement Statute interpretation was arbitrary and capricious. The panel also concluded that regulations extending the time to respond to advisory opinion requests were contrary to law. the challenge to those regulations was not moot even though the company received the opinion, because it would likely be impacted by the delay provisions again in the future, and the provision was contrary to law because the statute had a mandatory sixty-day deadline.

The D.C. Circuit (Wilkins, Rao, Childs) dismissed an appeal by the National Rifle Association where it was not a party (and had never sought to be a party) in the underlying action. NRA could not get around its non-party status by bringing a Rule 60 motion and appealing the denial of that motion.

The D.C. Circuit (Pillard, Childs, Garcia) reversed a decision dismissing a restaurant’s First Amendment complaint against a D.C. Advisory Neighborhood Commission, which had opposed the restaurant’s renewal of its liquor license following the restaurant’s public criticism of, and refusal to comply with, masking and vaccination requirements during the pandemic. The restaurant could not bring a First Amendment retaliation claim based on its refusal to enforce those requirements, because that refusal was not protected expressive conduct. But it could proceed on its claim that the ANC retaliated based on the restaurant owner’s social media posts and press interviews.

The Eleventh Circuit (Branch, Luck, Moreno) rejected an Appointments Clause challenge to the False Claims Act’s qui tam provisions. Qui tam relators do not need to be presidentially appointed because they are not officers of the United States. Specifically, they do not occupy a continuing position because their position only lasts the length of one case.

The Eleventh Circuit (W. Pryor, J. Pryor, Brasher) reversed a district court judgment in favor of commercial fishermen challenging the composition of the Gulf of Mexico Fishery Management Council on Appointments Clause grounds. The Magnuson-Stevens Act delegates significant federal authority to the Council, which includes members of state governments and individuals who are nominated by a state governor. That membership structure violates the Appointments Clause, so the Council cannot wield that federal authority as currently constituted. However, the remedy for this constitutional infirmity is not to void the councilmembers’ appointments or undo all the Council’s actions. Only those actions specifically taken under the Council’s unconstitutionally delegated federal authority—i.e., its ability to veto the Secretary of Commerce’s actions in certain instances—are invalid. Here, the rule at issue (the gag grouper rule) was not based on that authority because—even though the Council drafted and proposed the rule—the Secretary of Commerce promulgated it, without the Council relying on any of its veto authorities.

The Ninth Circuit (McKeown, Fletcher, Bumatay) affirmed in part, reversed in part, and remanded to district court the Sauk-Suiattle Indian Tribe’s claim to certain tribal fishing rights under the framework established by the Boldt Decision, a 1974 district-court decision interpreting the Treaty of Point Elliott. The Tribe’s claim to off-reservation fishing rights on the Skagit River was foreclosed by circuit precedent, and the district court correctly concluded that it lacked jurisdiction over the Tribe’s request for a determination regarding those rights. As to the Baker River and marine waters, however, the Tribe’s claims were not specifically determined by the Boldt Decision and were justiciable under it.

The Ninth Circuit (Paez, Kasubhai*) granted a petition for review of a Board of Immigration Appeals decision denying an application for various forms of immigration relief. The Circumvention of Lawful Pathways Rule upon which the denial was based was inconsistent with the asylum statute under circuit precedent and the text of the statute. Concluding otherwise would create absurd results and was not the best reading of the statute as an ordinary reader would understand it. The fact that the rule allowed for exceptions did not solve the problem. Judge Bumatay dissented, reasoning that text and context conferred broad discretion on the Executive to establish conditions for asylum eligibility.

The Eighth Circuit (Loken, Gruender, Kelly) granted in part and denied in part Union Pacific’s petition challenging the Surface Transportation Board’s grant of terminal trackage rights to Metra, a Chicago passenger rail provider, and vacated and remanded the decision for further proceedings. The Board did not err in determining that Metra’s use of the lines satisfied the statute’s public interest requirement. The Board reasonably extended Metra’s terminal trackage rights to the end of its existing service. Union Pacific’s contrary interpretation of the statute was inconsistent with its plain meaning. The statute’s use of the phrase “reasonable distance” left the agency “with flexibility,” and the Board gave a reasoned explanation for why its grant extended as far as it did. However, the Board improperly failed to secure reasonable compensation for Union Pacific when it called for Union Pacific and Metra to negotiate and pledged to set compensation if agreement could not be reached. Judge Kelly largely concurred but relied on different reasoning on the compensation issue.