Bulletin of Developments in Environmental and Administrative Law

PreemptionStanding Wisconsinites for Alts. to Smoking & Tobacco v. Casey, 2026 WL 1078504 (7th Cir. April 21, 2026). The Seventh Circuit (Brennan, Lee, Kolar) affirmed the denial of a preliminary injunction seeking to enjoin as preempted a Wisconsin statute requiring Food & Drug Administration authorization before vapes and e-cigarettes may be sold in the state. The plaintiff organization had Article III standing to bring implied preemption and equal protection claims because it alleged lost sales and business. That injury was traceable to the state statute notwithstanding the possibility of federal enforcement because neither the actual nor realized threat of enforcement prevented e-cigarette sales. But the plaintiff was not likely to prevail on the merits: Under the preemption scheme established by the Family Smoking Prevention and Tobacco Control Act (which included preservation and savings clauses), Congress made the Act a floor rather than a ceiling on state regulation. And a state law mirroring a federal standard did not create a conflict between the two. In reaching that conclusion, the court agreed with four circuits, and split from one district court. The remaining factors did not favor an injunction.

Sovereign ImmunityStandingTakings Sanchez v. Torrez, 2026 WL 1074516 (10th Cir. April 21, 2026). The Tenth Circuit (Phillips, McHugh) affirmed on alternative grounds the dismissal of New Mexico landowners’ claim that a New Mexico Supreme Court decision eliminating their right to exclude the public from walking or wading in their private streambeds effected a judicial taking. Contrary to the district court’s reasoning, the landowners had standing to file suit against New Mexico officials—even though those officials could not change the state court ruling or prevent private citizens from enforcing it—because there was a credible threat of agency enforcement that would be eliminated by a ruling in the landowners’ favor. State sovereign immunity was also no bar, as the district court could provide relief by ordering state officials to cease enforcement, rather than ordering compensation. On the merits, assuming that judicial takings are cognizable, the complaint did not plausibly allege that the landowners had a clearly established right to exclude before the state court decision. Judge Federico dissented in part and would have simply reversed the jurisdictional rulings and remanded.

Takings White’s Landing Fisheries, Inc. v. Ohio Dep’t of Natural Res., Div. of Wildlife, 2026 WL 1091219 (6th Cir. April 22, 2026). The Sixth Circuit (Gibbons, Stranch, Davis) affirmed the dismissal of claims that an Ohio catch restriction on seine commercial fishers violated the Takings Clause. Whether or not the federal and Ohio constitutions recognize a property interest in a fishing license’s value, or in uncaught fish, sovereign immunity barred the plaintiff’s takings and state-law claims.

RipenessStanding National Ass’n for Gun Rights v. Polis, 2026 WL 1098395 (10th Cir. April 23, 2026). 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.

Organizational StandingStanding United States v. Texas, 2026 WL 1122127 (5th Cir. April 24, 2026). 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.

Class ActionsStatutory Interpretation Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Mullin, 2026 WL 1110616 (10th Cir. April 24, 2026). 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.

Citizen SuitsRCRA Forward, Inc. v. Macomber, 2026 WL 1130576 (9th Cir. April 27, 2026). 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.

Standing Public Int. Legal Found. v. Nago, 2026 WL 1144703 (9th Cir. April 28, 2026). 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.

Magnuson-Stevens Act New England Fishermen’s Stewardship Ass’n v. Lutnick, 2026 WL 1179140 (1st Cir. April 30, 2026). 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.

Rails-to-Trails ActTakings Pressly v. United States, No. 24-1823 (April 30, 2026). 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.

Associational Standing Public Emps. for Env’t Resp. v. Zeldin, 2026 WL 1191153 (D.C. Cir. May 1, 2026). 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.

APA Louisiana v. Food & Drug Admin., 2026 WL 1194924 (5th Cir. May 1, 2026). 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.

StandingTakings Poppleton Now Cmty. Ass’n, Inc. v. La Cite Dev., LLC, 2026 WL 1204639 (4th Cir. May 4, 2026). 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.

Takings 3Pak LLC v. City of Seattle, 2026 WL 1218469 (9th Cir. May 5, 2026). 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.

Final Agency ActionNEPA Friends of the Everglades, Inc. v. Secretary of U.S. Dep’t of Homeland Sec., 2026 WL 1077624 (11th Cir. May 21, 2026). The Eleventh Circuit (W. Pryor, Brasher, Abudu) vacated a preliminary injunction in a challenge to Florida and the federal government’s failure to comply with the National Environmental Policy Act before constructing an immigration detention center in the Everglades. The challengers were unlikely to succeed on the merits because there was no final agency action. Florida, not the federal government, made the decision to construct the facility, and the federal government’s request that Florida do so had no independent legal effect. Nor did the “constellation of [federal] agency choices” accompanying the facility’s creation and use qualify as final agency action in the absence of an agency statement implementing the alleged decision to stand up the facility. In addition, there was no “major federal action” under NEPA as currently amended. The project must both receive federal funding and be subject to federal control, and the latter was not true here. The injunction also partially violated an Immigration and Nationality Act prohibition on enjoining immigration enforcement.

CASAInjunctions Dickinson v. Trump, 2026 WL 1133353 (9th Cir. April 27, 2026). 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.

CASAInjunctions Reach Cmty. Dev’t v. U.S. Dep’t of Homeland Sec., 2026 WL 1133351 (9th Cir. April 27, 2026). 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.

CAACitizen SuitsStays Gordon-Darby Holdings v. Quinn, 2026 WL 1179043 (1st Cir. April 30, 2026). 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.