Bulletin of Developments in Environmental and Administrative Law

EPCANotice & Comment Mississippi v. Department of Energy, 2026 WL 2320839 (5th Cir. August 11, 2026). The Fifth Circuit (Haynes, Ho, Oldham) granted a petition for review challenging the Department of Energy’s direct final rule adopting conservation standards for consumer stoves and cooktops. The petitions for reviews were timely. The Energy Policy and Conservation Act limitation period runs from the date the rulemaking process concludes, which is when the Department decides to adhere to the direct final rule. Under EPCA’s direct final rule procedures, the DOE was required to withdraw the rule because the comments that were submitted provided a reasonable basis to doubt the rule’s legality. Judge Haynes concurred in part, agreeing that the court had jurisdiction but explaining that her approach would have been to remand to the DOE to reconsider its decision.

Remedies Texas Med. Ass’n v. Department of Health & Hum. Servs., 2026 WL 2322331 (5th Cir. August 11, 2026). The en banc Fifth Circuit, in a per curiam decision, affirmed in part and reversed in part a decision granting relief to plaintiffs challenging a joint rule of the Health and Human Services, Labor, and Treasury Departments establishing how to calculate a “qualifying payment amount” under the No Surprises Act. Two aspects of the challenged rule were contrary to the statute and vacatur was appropriate. Even if that result would create a host of practical problems, the Administrative Procedure Act “does not embrace a too-big-to-vacate principle,” and in any event, the practical problems were overstated. Judge Ho concurred to raise concerns about whether universal vacatur of an agency rule is lawful under the Administrative Procedure Act. Judge Oldham concurred in part, explaining that the Departments separately erred in proceeding by an interim-final rule and attempting to fix errors in the rule via an informal FAQ document. Judge Haynes (joined by Judges Stewart, Graves, Higginson, Douglas, Ramirez) concurred in part and dissented in part on the merits.

Agency AuthorityArbitrary & CapriciousChange in Position Florida E. Coast Railway LLC v. Federal RR Admin., 2026 WL 2321640 (11th Cir. August 11, 2026). The Eleventh Circuit (Rosenbaum, Kidd) rejected industry challenges to a Federal Railroad Administration rule requiring railroads to operate with at least two crew members in each train crew. As relevant, the rule falls within the FRA’s statutory authority to issue safety rules “as necessary.” That language does not require a showing that a safety rule is essential, but rather indicates a “a run-of-the-mill general rulemaking authority” granting the agency discretion. In addition, a 2019 FRA order that withdrew a prior notice of proposed rulemaking and announced an agency view that two-person operations are unwarranted is not a “position” triggering the change-of-position doctrine, because that withdrawal order was itself later vacated by a court, and a vacated order has no legal effect. In any event, the FRA reasonably explained its changed course. Other statutory-authority and arbitrary-and-capricious challenges, including a claim that the agency failed to consider labor costs, also failed. Judge Grant dissented. She disagreed with the majority’s reasoning on the change-in-position claim and the failure-to-consider-labor-costs claim.

Deepwater Port ActRemediesStanding Citizens for Clean Air & Clean Water in Brazoria Cnty. v. Department of Transp., 2026 WL 2333158 (5th Cir. August 12, 2026). The Fifth Circuit (Clement, Southwick, Engelhardt) granted a petition for review and vacated a decision approving an application to construct a deepwater port. The challengers had associational standing where a member who lived within 1.5 miles of the proposed tank farm and pipeline associated with the port expressed concern that the approved project would cause increased flooding, additional noise, decreased property values, and deterioration of nearby roads. On the merits, the decision approving the application was inconsistent with the Deepwater Port Act, which allows only one deepwater port to be constructed in a given application area. Such a conflict existed because the agency approval wrongly excluded the pipelines serving the port from the application. Vacatur was appropriate because the agency could neither correct nor justify its error on remand.

Seventh Amendment Bonan v. Federal Deposit Ins. Corp., 2026 WL 2332583 (7th Cir. August 12, 2026). The Seventh Circuit (Scudder, Kirsch, Pryor) denied a petition for review of a Federal Deposit Insurance Corporation order prohibiting a banker from working at FDIC-insured institutions and assessing a civil money penalty. The administrative adjudication resulting in those penalties did not violate the banker’s Seventh Amendment jury trial right because the FDIC’s enforcement action was insufficiently akin to common law actions available at the founding. That was a close call, however: Based on the reasoning in Jarkesy, it was unclear why the equitable lineage of fiduciary duties could not render them private rights. The banker’s challenge to the removal protections of the FDIC board failed because he did not show those protections caused him compensable harm. Nor did the administrative proceedings violate the banker’s right to due process under the Fifth Amendment.

Arbitrary & CapriciousESANEPA Friends of Animals v. U.S. Fish & Wildlife Serv., 2026 WL 2330761 (10th Cir. August 12, 2026). The Tenth Circuit (Bacharach, Moritz, Federico) reversed a district-court judgment upholding the Fish and Wildlife Service’s general conservation plan for Utah prairie dogs and its issuance of incidental-take permits to counties undergoing development. With respect to the Endangered Species Act, the FWS’s conservation plan failed to mitigate the effects of development “to the maximum extent practicable.” 16 U.S.C. § 1539(a)(2)(B)(ii). Although the plan’s general reliance on translocation of the species was permissible, it arbitrarily and capriciously failed to compare the biological value of lost habitats to new habitats following translocation. The FWS also failed to offset the loss of habitat in designated “major development” areas. In addition, the FWS violated the National Environmental Policy Act by failing to complete an environmental impact statement, due to the agency’s incorrect assumption that the conservation plan would not reduce the prairie dogs’ population.

Arbitrary & CapriciousAssociational StandingCAAStanding Ctr. for Biological Diversity v. U.S. Env’t Prot. Agency, 2026 WL 2330260 (11th Cir. August 12, 2026). The Eleventh Circuit (Rosenbaum, Lagoa, Marcus) rejected a challenge to the Environmental Protection Agency’s notice of approval of other use for phosphogypsum (a radioactive byproduct of fertilizer production) to be used in a road-construction project near the fertilizer plant. The environmental organization challenging the notice had associational standing based on a member who lived within five miles of the facility and believed this additional use of phosphogypsum would exacerbate exposure and contamination risks, causing loss of enjoyment of his property and “plausible” health risks. The case was not moot even though the portions of the road containing phosphogypsum had already been completed. The approved project also involved ongoing monitoring and testing requirements, and vacating the approval would still have a legal effect and could benefit the plaintiff. On the merits, the EPA’s approval did not violate the unambiguous text of the relevant regulations. Nor was the approval arbitrary and capricious. The EPA’s risk-assessment methodology was a matter of “technical judgment lying fully within the scope of the EPA’s agency discretion,” and deference is warranted to both the methodology and the ultimate decision it yielded.

Mootness W.M.M. v. Trump, 2026 WL 2349473 (5th Cir. August 13, 2026). The en banc Fifth Circuit dismissed for lack of jurisdiction an appeal of the denial of a preliminary injunction against the President’s proclamation subjecting certain Venezuelan citizens to immediate removal under the Alien Enemies Act of 1798. After oral argument, the court learned that the government had removed the named petitioners—under other authorities—and so the appeal was moot. The court declined to substitute new class representatives, recognizing that could be addressed on remand. Judge Ho concurred, agreeing that the case was moot but believing that the court should address the merits and affirm the President’s actions. Judge Oldham concurred in the judgment, because he would have denied the injunction on the merits.

Standing American Freedom Law Ctr., Inc. v. Nessel, 2026 WL 2364403 (6th Cir. August 14, 2026). The Sixth Circuit (Readler, Stranch, Bloomekatz) affirmed a summary judgment dismissing for lack of standing a “Judeo-Christian” law firm’s First Amendment challenge to a Michigan press release that, citing third-party reporting, characterized the law firm as a hate group. The firm did not show that that press release had caused it any injury, such as reputational injury or decreased donor support. Nor did it show it suffered harm by devoting resources to mitigate its reputational damage because, among other things, that theory was downstream of its claims of reputational harm. Judge Readler concurred to offer his views as to what threshold a party must meet to establish a reputational injury.

Agency Authority Queerdoc, PLLC v. DOJ – United States Dep’t of Justice, 2026 WL 2359440 (9th Cir. August 14, 2026). The Ninth Circuit (Bea, Bress) reversed an order quashing an administrative subpoena issued to a telehealth provider of gender-affirming care pursuant to the Health Insurance Portability and Accountability Act. The agency issued the subpoena pursuant to its statutory authority because HIPAA permits investigations for potential violations of Federal Food, Drug, and Cosmetic Act misbranding prohibitions. The DOJ also complied with HIPAA’s procedural requirements, and the requests were relevant to an authorized investigation. The provider did not meet its heavy burden of showing that the subpoena was issued for an improper purpose. Consistent with the presumption of regularity and the high standard for such a request, the executive branch’s public opposition to gender-affirming care was insufficient to show that an otherwise permissible subpoena was issued in bad faith. Judge Paez dissented, reasoning that the district court’s bad faith finding was not clearly erroneous.

ESANEPA Center for Biological Diversity v. U.S. Bureau of Reclamation, 2026 WL 2387095 (9th Cir. August 17, 2026). The Ninth Circuit (Wardlaw, Bress, Sanchez) affirmed a summary judgment in favor of the Bureau of Reclamation in an action concerning environmental review of water service contracts for the Central Valley Project under the Water Infrastructure Improvements for the Nation Act.. Reclamation could convert water service contracts with the federal government to enable water districts to prepay the costs of those contracts and supply the government with funds for building storage infrastructure without conducting contract-specific National Environmental Policy Act review or Endangered Species Act consultation. Because conversion was a nondiscretionary act, Reclamation lacked the discretion required for NEPA or the ESA to apply.

FVRA United States v. Jackson, 2026 WL 2387099 (9th Cir. August 17, 2026). The Ninth Circuit (S.R. Thomas, Miller, Blumenfeld*) affirmed an order disqualifying the putative Acting United States Attorney for the District of Nevada from supervising the prosecution of defendants. The Federal Vacancies Reform Act permits first assistants to automatically succeed to a vacant office, but that rule applies only to a first assistant who held that position at the time the vacancy arose, and does not extend to someone who, like the putative appointee here, never served under a validly appointed official. The Attorney General also could not create a de facto Acting U.S. Attorney by delegating all the functions and duties of the U.S. Attorney to someone else.

CERCLA Chamber of Com. v. Environmental Prot. Agency, 2026 WL 2409748 (D.C. Cir. August 18, 2026). The D.C. Circuit (Millett, Katsas, Rao) denied several industry petitions challenging the Environmental Protection Agency’s designation of PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. The EPA properly interpreted CERCLA’s requirement (in 42 U.S.C. § 9602(a)) that the agency “shall” designate substances as hazardous that “may present substantial danger” as requiring designation where there is a possibility—not certainty—of danger on release. This reading of the statute did not violate the nondelegation or void-for-vagueness doctrines, because the statutory standard supplied an intelligible principle and put regulated parties on notice. The EPA’s cost-benefit analysis withstood challenge. It did not violate the Administrative Procedure Act’s notice requirement for the EPA to disclose its Regulatory Impact Analysis during publication of the final rule, because it was a logical outgrowth of an earlier analysis. The analysis was also reasonably explained.. Finally, the decision appropriately acknowledged and addressed uncertainties that would arise from regulating PFOA and PFOS as hazardous substances.

Informational StandingNEPAOrganizational StandingStanding Friends of the Earth v. Export-Imp. Bank of the U.S., 2026 WL 2409602 (D.C. Cir. August 18, 2026). The D.C. Circuit (Millett, Childs) affirmed an order denying a preliminary injunction seeking to halt the disbursement of loan funds to fund a liquefied natural gas project in Mozambique. The organizations seeking the injunction did not likely have standing under either of two organizational standing theories. The Bank’s failure to provide the organizations with a notice-and-comment period regarding the Bank’s approval of an amendment to the loan did not give rise to standing, because the organizations did not show how denial of that procedural right impacted any particularized interest.. Nor could the organizations establish organizational standing based on the funding of the project burdening the services that the they offered, because the relationship between the agency’s action and the increased demand for services was too attenuated. The organizations could not proceed on an informational standing theory that they had been deprived of the agency’s economic analyses because the relevant statute did not grant them an entitlement to the information. (The panel declined to address whether regulations could grant them an entitlement because that argument was forfeited below.) The organizations did have informational standing based on the agency’s failure to provide environmental and National Environmental Policy Act-related disclosures, but the NEPA claim was not likely to succeed on the merits because the record did not show that the project approval would have relevant domestic effects. Judge Randolph dissented in part. He would have dismissed the NEPA claim for lack of standing because the information sought was outside of the environmental interests NEPA was intended to protect.

Standing Teva Pharms. USA v. Kennedy, 2026 WL 2409591 (D.C. Cir. August 18, 2026). The D.C. Circuit (Henderson, Childs, Pan) affirmed in part and reversed in part a district court’s summary judgment for the government in a case challenging the Centers for Medicare & Medicaid Services guidance for designating drugs for the Inflation Reduction Act’s Drug Price Negotiation Program. The drug manufacturer’s standing theory depended on the selection of its drug for the program. It had standing to challenge the guidance that led to that selection, notwithstanding that the designation of the drug itself was not reviewable, because prospective vacatur of the guidance might require the agency to revisit its selection. Though the IRA’s review bar did not bar challenges to the guidance, one of the manufacturer’s statutory claims and its Due Process Clause claim failed on the merits. The court remanded for further consideration of a statutory argument that the district court had improperly rejected on prudential ripeness grounds.

Loper BrightStatutory Interpretation Vanda Pharms., Inc. v. Food & Drug Admin., 2026 WL 2409429 (D.C. Cir. August 18, 2026). The D.C. Circuit (Millett, Pan, Rogers) partially affirmed a grant of summary judgment for the Food and Drug Administration in case where a pharmaceutical manufacturer challenged the approval of a generic drug on the theory that the FDA wrongly approved a different label for that drug. The statute has a baseline rule that the proposed labeling for a generic drug should be the same as the labeling for the listed drug. But there is a limited exception for “changes required” because “the new drug and the listed drug are produced or distributed by different manufacturers.” 21 U.S.C. § 355(j)(2)(A)(v). The panel interpreted “changes required” narrowly, to embrace only those changes required by law. The FDA’s own regulations and past practice could not support its contrary interpretation (which read “required” to mean “optional and safe”) because the agency had not shown it brought its expertise to bear in making that interpretation. An order to the district court to remand without vacatur was appropriate because, although the FDA could not approve the generic label under the different-manufacturer exception, it could conclude the labels were, in fact, the same. Further, vacatur would require withdrawal of the drug, which could have disruptive consequences.

Standing Philadelphia Yearly Meeting of the Religious Soc’y of Friends v. U.S. Dep’t of Homeland Sec., 2026 WL 2409055 (4th Cir. August 18, 2026). The Fourth Circuit (Agee, Harris, Keenan) upheld a preliminary injunction against the Department of Homeland Security’s rescission of a policy limiting immigration-enforcement actions at or near houses of worship. As relevant, the plaintiffs have standing. It could reasonably be predicted that many noncitizens will decide not to attend the plaintiffs’ houses of worship because of the new enforcement policy. And plaintiffs’ injury—decline in attendance, which in turn negatively affects the plaintiffs’ religious practices—is fairly traceable to the new policy and will likely be redressed by an injunction reinstating the old policy. Judge Agee concurred. As relevant, he believed that the plaintiffs could also demonstrate standing based on a reduction in monetary contributions from congregants.

Remedies RJ Reynolds Tobacco Co. v. Food & Drug Admin., 2026 WL 2409778 (5th Cir. August 18, 2026). The Fifth Circuit (Southwick, Willett, Ho) affirmed an Administrative Procedure Act Section 705 stay of the Food and Drug Administration’s rule requiring cigarette manufacturers to display eleven warning statements on cigarette packaging. The plaintiffs were likely to succeed in challenging the rule because the statute’s text authorized only nine specific labels. A Section 705 stay was otherwise appropriate because the rule was poised to go into effect—which would cause irreparable harm—and the balance of equities tipped in the plaintiffs’ favor. As for remedy, the government’s argument that relief should be party-limited failed because Section 705 relief is not so restricted, and, in any event, a broad remedy was appropriate, even under the reasoning of Trump v. CASA, to supply complete relief. Finally, severance was inappropriate. Judge Ho did not join the panel’s decision on remedy.

MootnessStanding Planned Parenthood Great Nw., Hawai’i, Alaska, Ind., Ky., Inc. v. Commissioner, 2026 WL 2409722 (7th Cir. August 18, 2026). The Seventh Circuit (Rovner, Hamilton, Scudder) largely affirmed an injunction barring Indiana from enforcing a state statute restricting Planned Parenthood from providing information and referrals to emancipated pregnant minors. Among other things, the organization’s challenge was moot as to one official (who, following changes in state law, could no longer provide Planned Parenthood with relief). But the organization had standing to pursue its as-applied pre-enforcement challenge against members of the state licensing board, who had authority to discipline Planned Parenthood physicians based on information and referrals prohibited by the state law. The organization had its own free speech rights and could establish standing to challenge a law infringing those rights, even when the consequences of any violation fell most directly on its employees. The fact that the injunction did not (and could not) run against private lawsuits brought under the state law did not undermine the claims’ redressability, because redressability does not require that a favorable decision will relieve every injury a plaintiff suffers. The organization likewise established the prerequisites for a pre-enforcement challenge based on the law’s chilling effects on its protected expression. Judge Scudder concurred to express his disagreement with certain aspects of the panel’s merits reasoning.

Notice & CommentRemedies NicQuid v. Food & Drug Admin., 2026 WL 2425806 (5th Cir. August 19, 2026). The Fifth Circuit (Higginbotham, Smith, Oldham) granted a petition challenging a Food and Drug Administration order denying marketing approval to makers of electronic nicotine delivery systems or vaporized-nicotine-related products. Venue was appropriate under the Tobacco Control Act, even though only one of the petitioners could establish venue in the Fifth Circuit, because the judicial review scheme at issue permitted the party for whom venue was proper to seek vacatur. Addressing a question reserved by the Supreme Court in FDA v. Wages & White Lion Investments, 604 U.S. 542 (2025), the panel held that the “comparative efficacy” standard the FDA applies was a substantive rule that could only be adopted following notice-and-comment. The agency could not develop an “across-the-board requirement” in adjudication, and even if they could, they could not do so in informal adjudication.

Federalism Public Interest Legal Found., Inc. v. Wolfe, 2026 WL 2425386 (7th Cir. August 19, 2026). The Seventh Circuit (Brennan, Easterbrook, Sykes) affirmed the dismissal of claims that Wisconsin’s exemption from the National Voter Registration Act’s public inspection and photocopying requirements for official voter lists violated the principle of equal sovereignty recognized in Shelby County, as well as the congruence and proportionality requirement for legislation enacted pursuant to Congress’s Fourteenth Amendment enforcement power. Even if the prudential third-party standing doctrine could support an organization’s invocation of what are fundamentally rights of the States, the petitioner’s arguments failed on the merits. Shelby County invoked equal sovereignty to spare states from onerous regulatory burdens, and this statute did the opposite. And the congruence and proportionality requirement applied only to laws adopted pursuant to Section 5 of the Fourteenth Amendment. The Voter Registration Act was adopted under the Elections Clause.

Associational StandingStanding Holmes v. Bax, 2026 WL 2421803 (8th Cir. August 19, 2026). The Eighth Circuit (Loken, Shepherd, Stras) affirmed in part and reversed in part a summary judgment for the plaintiffs, and vacated a permanent injunction, in a challenge to Missouri’s administration of the Supplemental Nutritional Assistance Program. A plaintiff organization lacked associational standing because its injuries were not akin to those asserted in Havens. It did not provide services or assistance to SNAP applicants, and its business model was to spend money opposing the State’s allegedly unlawful practices. Individual plaintiffs had standing to bring due process and failure to accommodate claims. They were injured by the denial of benefits, and the declaratory and injunctive relief they sought would redress that injury by preventing future erroneous denials of SNAP benefits. The State’s complaint that the plaintiffs’ remedy was not appropriately tailored to their injuries was not relevant to standing.

Standing Minnesota Voters All. v. Ellison, 2026 WL 2443854 (8th Cir. August 20, 2026). The Eighth Circuit (Gruender, Stras, Kobes) reversed a decision denying a preliminary injunction to an organization challenging state and county enforcement of a statute prohibiting election disinformation against the group based on its advocacy for felon disenfranchisement. The organization had standing. The time and money involved in defending against a counterclaim brought by the county was itself an injury, and it likewise faced an imminent injury from the possibility that a court would prevent or restrain it from speaking or would require it to pay money damages. Its members also faced an injury from chilled speech. And the district court abused its discretion in denying the organization a preliminary injunction because the organization was likely to prevail on the merits.

GrantsMootness National Council of Nonprofits v. Office of Mgmt. & Budget, 2026 WL 2451517 (D.C. Cir. August 21, 2026). The D.C. Circuit (Srinivasan, Wilkins, Garcia) vacated a preliminary injunction of Office of Management and Budget Memorandum M-25-13, which had directed agencies to pause grants, loans, and financial assistance programs. The challenge to the Memorandum was moot because the Memorandum had been rescinded and the voluntary cessation exception did not apply. A blanket freeze could not reasonably be expected to recur in light of guidance that issued before plaintiffs brought suit, which showed the government’s lack of interest in such a freeze.

Standing California v. U. S. Bureau of Alcohol, Tobacco, Firearms & Explosives, 2026 WL 2451425 (9th Cir. August 21, 2026). The Ninth Circuit (Callahan, H.A. Thomas, Johnstone) vacated a summary judgment and remanded with instructions to dismiss for lack of standing a challenge to a rule extending the reach of the Gun Control Act, which California and a nonprofit together alleged did not go far enough. Neither California (which claimed it faced increased expenditures to accelerate implementation of State ghost gun regulations) nor the nonprofit (which claimed frustration of mission and diversion of resources) established a causal link between the rule and their claimed injuries.

Auer United States v. Cisneros, 2026 WL 2451424 (9th Cir. August 21, 2026). The Ninth Circuit (Tallman, Hamilton*) affirmed the sentence imposed on a former Department of Homeland Security agent who was convicted of taking bribes in exchange for misusing a law enforcement database. It was ambiguous whether the relevant sentencing guideline, which provided an enhancement for a bribery offense involving a “public official in a high-level decision-making or sensitive position,” applied only to a sensitive position that is also high level. The term “sensitive position” was also ambiguous. An application note to the guideline reasonably interpreted it as extending to law enforcement officers, and so the district court did not err in applying the enhancement. Judge Rawlinson dissented, reasoning that the opinion improperly endorsed the district court’s failure to exhaust all tools of construction in determining whether the guideline was ambiguous.

Loper Bright Piedra v. Blanche, 2026 WL 2470119 (4th Cir. August 24, 2026). The Fourth Circuit (Diaz, Richardson, Keenan) partially granted a noncitizen’s petition for review of her final order of removal. The Fourth Circuit has not yet decided how to implement Loper Bright’s instruction that cases decided under the Chevron framework “are still subject to statutory stare decisis.” That language is open to several different interpretations, and courts are currently grappling with the issue. Here, however, there was no prior binding circuit precedent applying the relevant Board of Immigration Appeals framework for analyzing the immigration effects of a vacated conviction. And the Board’s interpretation was not the best reading of the Immigration and Nationality Act.

FOIA Kinnucan v. National Sec. Agency, 2026 WL 2472482 (9th Cir. August 24, 2026). The Ninth Circuit (Paez, Bea, Bress) affirmed a summary judgment to the National Security Agency on a plaintiff’s Freedom of Information Act claims, which sought volumes of a House Appropriations Committee report referenced in an NSA report. Adopting the D.C. Circuit’s test for when congressional documents become agency records under FOIA, the panel held that the document did not meet that test. Congress manifested a clear intent to control the document.

ESAStanding Center for Biological Diversity v. Environmental Prot. Agency, 2026 WL 2482270 (D.C. Cir. August 25, 2026). The D.C. Circuit (Srinivasan, Henderson, Rao) denied an Endangered Species Act challenge to the Environmental Protection Agency’s rule retaining existing secondary National Ambient Air Quality Standards for nitrogen oxides and particulate matter and revising the standards for sulfur oxides. The environmental group had associational standing to challenge the EPA’s failure to consult with the wildlife services, because it identified a member with aesthetic interests in species that criteria pollutants harm, and the court could presume that consultation could result in more stringent regulation. On the merits, the EPA’s no-effects determination was not arbitrary and capricious, nor was it completed at the wrong time. The EPA reasonably concluded that the standards it adopted and retained would not result in any changes to air quality that could affect protected species. The rule was not a but-for cause of any ongoing or cumulative environmental effects. The EPA’s determination did not come too late, notwithstanding the requirement that it occur at “the earliest possible time,” because the EPA need only make that determination before taking final action. Judge Henderson concurred to observe that the EPA’s decision not to change certain standards was inaction that did not trigger the ESA’s consultation requirement.

NEPANGA For a Better Bayou v. Federal Energy Regul. Comm’n, 2026 WL 2484310 (D.C. Cir. August 25, 2026). The D.C. Circuit (Henderson, Millett, Ginsburg) denied a challenge to the Federal Energy Regulatory Commission’s authorization of a liquified natural gas export terminal and pipeline. FERC’s authorization was consistent with the Natural Gas Act because Section 3 of the Act creates a presumption in favor of authorization, which can be rebutted only by showing that approving the terminal is inconsistent with the public interest. There is no bright-line rule about when that standard is met, but FERC’s discretion is limited by prior precedent and its obligation to explain its decision, and FERC’s application of the Act to the terminal withstood scrutiny here. As for the approval of the associated pipeline, which was governed by a different subsection of the Act, FERC adequately analyzed the market need for the pipeline and explained why the benefits of the pipeline outweighed its adverse effects. Petitioners’ challenges under the National Environmental Policy Act likewise failed. FERC’s analysis of cumulative air quality effects and harm to commercial fishing interests stood up to the deferential standard of review under NEPA.

Magnuson-Stevens ActMootness Slash Creek Waterworks v. Lutnick, 2026 WL 2482550 (D.C. Cir. August 25, 2026). The D.C. Circuit (Srinivasan, Henderson, Ginsburg) affirmed summary judgment for the National Marine Fisheries Service in a challenge to the management plan for red snapper brought by commercial fishers and buyers of South Atlantic red snapper. The Service’s adoption of a rule that superseded the rule being challenged did not moot the case because the Service failed to show that its new rule did not injure plaintiffs “in the same fundamental way” as the prior one. The panel declined to address whether the challenge was time-barred because it concluded that the deadline in 16 U.S.C. § 1855(f)(1) was not jurisdictional and the challenge otherwise failed on the merits. To that end, the challenged rule’s use of a catch limit set solely in terms of landings (fish brought ashore) was consistent with the requirements of the Magnusen-Stevens Act.

Federal Court Removal Plaquemines Parish v. Chevron USA Holdings, 2026 WL 2479219 (5th Cir. August 24, 2026). In an unpublished per curiam decision on remand from the Supreme Court, the Fifth Circuit (Elrod, Clement) vacated the district court order remanding the case to state court and remanded to the district court for further proceedings. Judge Oldham dissented because he would have decided the appeal on the merits.