Bulletin of Developments in Environmental and Administrative Law

The Eighth Circuit (Colloton, Shepherd, Erickson) reversed a district court’s affirmance of an Army Corps of Engineers decision revoking a landowners’ shoreline use permit. The Army Corps fined the landowner for felling trees on government land, recommended revoking his permit, and proposed a financial settlement that purported to “settle[] all known disputes” between the Corps and the landowner. Because the revocation of the permit naturally fit the definition of a “dispute[],” a straightforward reading of the agreement manifested an objective intent to settle that dispute as well as the tree-felling.

The United States filed a complaint in intervention—as it previously did in a related case—in a challenge to California’s Clean Truck Partnership, arguing that federal law preempts that program.

The D.C. Circuit (Millett, Wilkins, Katsas), in a per curiam order, denied the government’s request for a stay of an order requiring the removal of President Trump’s name from the Kennedy Center’s façade and website, and requiring the withdrawal of any trademark application that included the President’s name. Removal of the President’s name would not cause irreparable harm in terms of expense and lost time because the removal had already occurred, and the claimed financial harm from removal was too speculative. The panel declined to address a factual claim of harm that had not been raised in the district court.

The Tenth Circuit (Tymkovich, Phillips, McHugh) affirmed in part and reversed in part a district court’s dismissal of a pet food company’s Lanham Act false-advertising claim against a rival pet food company and others. The plaintiff claimed that the rival company, partner veterinarians, and nonprofit organizations conspired to disparage its product by falsely claiming that grain-free food is linked to a higher risk of canine heart disease. The rival company’s statements on its website, including vet-education materials, indirectly promoted the company’s own products and constituted commercial speech subject to the Act. The plaintiff also plausibly alleged that the statements were false because they are not supported by scientific study. However, the statements by veterinarians and nonprofits were not commercial speech, and they are First Amendment-protected because they deal with matters of public concern.

The D.C. Circuit (Srinivasan, Wilkins, Rao) vacated a grant of summary judgment in favor of States and local governments challenging changes the United States Postal Service made in 2020 with respect to the collection, processing, and delivery of mail. The district court lacked jurisdiction over the claim because the States’ claim must first be brought in an administrative complaint before the Postal Commission. The statutory review scheme in the Postal Accountability and Enhancement Act requires that result, and the claims did not fall outside of that regime: The existing scheme would provide for meaningful judicial review, the claim is not wholly collateral to the review provisions; and the claim is not outside the agency’s expertise.

The D.C. Circuit (Srinivasan, Katsas, Rogers) affirmed a grant of summary judgment to the Centers for Medicare & Medicaid Services in a challenge to CMS’s denial of a health insurance company’s request that CMS reevaluate the ratings its insurance plans had been given. The insurance company failed to establish that CMS departed from its own procedural rules, and the panel could rest on that basis, even if the agency did not provide that rationale itself, because the company forfeited any Chenery objection by failing to raise it in the district court. The agency’s decision to give insurance companies and survey vendors some discretion about how to collect data on plan performance did not violate the private nondelegation doctrine because CMS retains ultimate authority over the process.

The Ninth Circuit (Koh, de Alba) affirmed a preliminary injunction enjoining the Financial Crimes Enforcement Network from enforcing a Geographic Targeting Order, issued under the Currency and Foreign Transactions Reporting Act, that significantly reduced the reporting threshold applicable to cash transactions at money service businesses along the southwestern border. The plaintiff money service business and its owner were likely to prevail on the merits of their Administrative Procedure Act claims: Because of its broad applicability, the Order was likely a rule, not an order; FinCEN was required to conduct notice and comment rulemaking before issuing that de facto rule, and it was likely adopted in an arbitrary and capricious manner because FinCEN failed to consider the cost of compliance to regulated parties. The district court did not clearly err in concluding that the plaintiff demonstrated a likelihood of irreparable harm due to those compliance costs, in concluding that the balance of the preliminary injunction factors favored the plaintiffs, or in limiting the preliminary injunction to the Southern District of California. Judge Lee dissented, reasoning that the district court improperly based its findings of irreparable harm on blanket assertions of financial burden.

The Eighth Circuit (Colloton, Shepherd, Erickson) reversed a district court’s affirmance of an Army Corps of Engineers decision revoking a landowners’ shoreline use permit. The Army Corps fined the landowner for felling trees on government land, recommended revoking his permit, and proposed a financial settlement that purported to “settle[] all known disputes” between the Corps and the landowner. Because the revocation of the permit naturally fit the definition of a “dispute[],” a straightforward reading of the agreement manifested an objective intent to settle that dispute as well as the tree-felling.

The First Circuit (Montecalvo, Lynch, Dunlap) affirmed the denial of a puppy-adoption organization’s as-applied challenge to a Centers for Disease Control regulation, implemented as a measure to prevent the spread of rabies, requiring all dogs admitted into the United States to be at least six months old,. The age restriction qualifies as an “inspection” measure under the CDC communicable-disease-prevention statute, 42 U.S.C. § 264(a), because verifying the dog’s age helps rule out non-rabies causes for erratic behavior and ascertain that the dog was able to receive a rabies vaccine. The regulation is not arbitrary and capricious as applied to dogs from the Caribbean, even though those countries (like the United States) are considered rabies-free. An agency need not show that it has adopted the most narrowly tailored option to address its concern. Here, it is not irrational for the CDC to conclude that importers may attempt to transport dogs from high-risk countries into the United States through Caribbean islands.

The Ninth Circuit (Nguyen, Bennett, Matsumoto*) denied a petition for review from a decision of the Board of Immigration Appeals upholding an immigration judge’s determination that a noncitizen was not entitled to withholding of removal under a prior BIA decision creating a presumption that drug trafficking aggravated felonies are particularly serious (and thus render noncitizens ineligible for withholding of removal). Under Loper Bright, circuit precedent according that decision Chevron deference was entitled to stare decisis.

The Fifth Circuit (Smith, Willett, Ramirez) denied, for lack of standing, environmental organizations’ petition for review challenging the Maritime Administration’s approval of a deepwater liquid natural gas port project in the Gulf of Mexico. Their members’ claims of harm from the facility were insufficient because the members failed to establish a sufficient geographic nexus between their activities and alleged harms from the project and did not distinguish harm caused by the project from harm caused by other industrial development. Those failures undermined injury-in-fact and traceability.

The Fourth Circuit (Niemeyer, Gregory, Agee) partially affirmed, reversed, and vacated a district court’s standing-based dismissal of a First Amendment challenge to a South Carolina budget proviso prohibiting public schools from teaching certain race-related concepts. The plaintiffs—students and the author Ibram Kendi—alleged that school officials relied on the proviso to eliminate an Advanced Placement African-American Studies course and to remove Kendi’s book from school libraries. As relevant, one student lacks standing because—even though he alleged that he would enroll in the AP course were it offered before his graduation—he had not enrolled in the course before it was removed. His allegation thus amounts to an insufficient “some day intention.” Another student who had enrolled in the course before its removal does have standing. It does not matter for causation or redressability purposes that the AP course was part of a pilot program and might have been (or might still be) eliminated on grounds unrelated to the proviso. The same goes for the school officials’ argument that Kendi’s book was removed on an independent non-proviso ground, at least at the pleading stage. And officials’ argument that the students don’t have a First Amendment right to receive information from the government goes to the merits, not standing.

The D.C. Circuit (Srinivasan, Millett, Edwards) reversed a decision dismissing for lack of standing Second and Fifth Amendment claims challenging D.C.’s ban on carrying firearms on public transportation. The pistol owner plaintiffs had standing to seek prospective relief against the ban because it forced them to pay for alternative means of transportation. They also had standing to pursue damages against the district based on these same economic harms. The Supreme Court’s decision in Clapper v. Amnesty International USA, 568 U.S. 398 (2013), was no impediment to standing; these were not self-inflicted harms because the ban directly regulates the plaintiffs’ conduct and compels the costly change in behavior.

The Supreme Court of Texas (Huddle) held that private parties could not bring challenges under Article I, § 33 of the Texas Constitution, which granted the public a right to use Texas beaches. Because Section 33 clarifies that it “does not create a private right of enforcement,” the private parties could not challenge legislation that required temporary closures of Boca Chica Beach in South Texas.

The Supreme Court of Alabama (Sellers) affirmed the denial of a preliminary injunction of a state statute regulating the sale of e-cigarettes. The plaintiffs had standing (notwithstanding that even if they prevailed in setting aside the state law, their conduct would still be illegal) because their injury stems from the enforcement of the state statute. The plaintiffs were not likely to succeed on their argument that the state statute was preempted by the federal Tobacco Control Act or their dormant Commerce Clause arguments. Justice Cook concurred in the result, to list doubts about the majority’s standing analysis.

The Supreme Court of Wisconsin (Crawford) affirmed the dismissal of a suit brought by private landowners against the Menominee Indian Tribe and one member on tribal sovereign immunity grounds. Congress did not abrogate the Tribe’s sovereign immunity in the Restoration Act and the Tribe did not waive its immunity by allowing a member to acquire parcels with restrictive covenants. The court also declined to allow for in rem and immovable property exceptions to immunity. Justice Bradley (joined by Justice Ziegler) dissented to emphasize that tribal sovereign immunity should incorporate exceptions available at common law, which includes the immovable property exception. Justice Hagedorn (joined by Justices Ziegler and Bradley) also dissented because they would not have resolved the case without the United States government—the owner of the disputed lots—being in the case.

The U.S. District Court for the District of Maryland (Boardman) dismissed—in a ruling from the bench—a challenge to the National Marine Fisheries Service’s 2025 programmatic biological opinion that covers 45 years of oil and gas leases and activity in the Gulf of Mexico. Because the so-called “God Squad” Endangered Species Committee had exempted oil and gas activities in the Gulf from the Act, the biological opinion had no more practical effect, and the court could not offer any meaningful relief.

The First Circuit (Barron, Gelpí, Rikelman) stayed a district court order preliminarily enjoining a Department of Interior order mandating review and potential revision or removal of interpretive materials at national parks. The stay motion made “serious contentions” that the plaintiffs are unlikely to succeed on the merits of their Administrative Procedure Act claims. But the stay could be granted based on the absence of irreparable injury alone. The plaintiff organizations’ standing declarations alleged specific aesthetic, recreational, and informational harms as to only one member, and the plaintiffs have not alleged that any interpretive material has yet been removed from the parks that the member has explicit plans to visit this summer (as opposed to “someday”).

The Federal Circuit granted en banc review to decide whether statutory civil-service removal protections for immigration judges are unconstitutional because immigration judges are officers of the United States whom the Attorney General may remove at any time.

The Eleventh Circuit (W. Pryor, Brasher, Abudu) rejected Florida’s constitutional challenges to the Department of Education’s reliance on private educational accreditors in disbursing federal education funds. Because the accreditors are not exercising governmental authority in the form of legislative rule-setting or executive decision-making power, there is no private nondelegation or Appointments Clause problem. Nor is accreditation an unascertainable condition attached to federal funds (so as to be unconstitutional under the Spending Clause). The condition itself is made obvious, even though it could have diverse applications depending on the accreditor and institution.