Bulletin of Developments in Environmental and Administrative Law

The Supreme Court of Texas, in an opinion by Chief Justice Blacklock, held that the Texas courts lacked jurisdiction over cities’ challenge to a state law that reduced the fees cities can charge to telecommunications companies. The cities named the State of Texas as a defendant, but a plaintiff who sues an allegedly unconstitutional law must “identify and name the officer or agency with authority to enforce the challenged law.”

The U.S. Department of Justice filed a motion to intervene and to dismiss a suit the NAACP brought to require xAI to comply with the Clean Air Act’s requirements under the Act’s citizen suit provisions. The government argues, among other things, that it must have the ability to intervene and unilaterally dismiss a citizen suit to avoid Article II concerns that the statute would otherwise present.

The U.S. District Court for the District of Massachusetts (Kelley) granted a stay under Section 705 of the Administrative Procedure Act in a challenge to the National Parks Service’s removal of certain signage and exhibits from national parks. The plaintiffs were likely to succeed on their arbitrary and capricious claims. Among other things, “[a] unilateral, unreasoned, and lawless Executive Order . . . cannot be the sole justification for an agency’s actions.” The plaintiffs were also likely to succeed on their claim that the removal was contrary to law because it violated, among other requirements, the Centennial Act’s directive to ensure the “highest quality interpretation and education.” Contrary to the defendants’ arguments, a Section 705 remedy was available in lieu of a preliminary injunction.

The U.S. District Court for the District of Colorado (Wang) granted a preliminary injunction, conditioned on a $5,000 bond, that enjoins construction of the R-Project, a transmission line across Nebraska. The plaintiff groups were not likely to succeed on the claim that Executive Order 14156 (declaring a national energy emergency) did not trigger the alternative compliance provisions of the National Historic Preservation Act. But they were likely to succeed on their claim that the U.S. Fish and Wildlife Service did not adequately explain why the project met those alternative provisions.

The U.S. District Court for the District of Columbia (Kollar-Kotelly) vacated an Internal Revenue Service notice that affected the availability of wind and solar energy project tax credits and remanded to the IRS. All but one of the plaintiffs had standing, for example associational standing based on nonspeculative injuries in the former of higher electricity rates. The Maryland Office of People’s Counsel lacked standing because it asserted the rights of Maryland ratepayers, and a precedential prudential rule bars states from using parens patriae standing to sue the federal government. The Anti-Injunction Act did not bar the suit. And on the merits, the agency’s action, among other things, failed to explain a significant change in position.

The Ninth Circuit, sitting en banc, vacated a prior order denying a motion to stay immigration removal (see Issue 26.4), granted such a stay, and ordered supplemental briefing. In light of en banc briefing and oral argument, it was apparent that the petitioners met the ordinary stay factors. Judge Wardlaw concurred, reasoning that the case laid bare the dangers of denying motions to stay removal before a panel has the opportunity to review the record and criticizing the truncated process the panel had proposed. Judge Lee, joined by Juge Bade, dissented, reasoning that Petitioners had not made a strong showing that they were likely to succeed on the merits. Judge Tung also dissented, reiterating a prior statement and criticizing the court for violating Nken twice in a single case: first by granting a prolonged stay without considering the merits, and then when it denied the stay to mask the circuit’s unlawful stay practice.

The Tenth Circuit (Tymkovich, Bacharach, Federico), in a per curiam order and judgment, dismissed as moot cattle growers’ appeal of a district-court order dismissing their challenge to the Forest Service’s authorization of lethal methods to remove feral Gila cattle. The Service’s removal operations had concluded and—while the case was on appeal—the Service withdrew the challenged memo and issued new guidance prohibiting the use of lethal removal methods for Gila cattle. Even though there is a dispute over whether any Gila cattle remain, there is no reasonable expectation that the Service will resume the challenged method, given the memo. And the agency’s action seems genuine, because the withdrawal followed a district-court victory. Similarly, the capable-of-repetition-yet-evading-review exception doesn’t apply because any future Gila cattle removal would be by a different method. Munsingwear vacatur is appropriate because the prevailing party took unilateral action to moot the case.

AbbVie, Inc. v. Brown, No. 24-1939, and PhRMA v. McCuskey, No. 25-1054 (4th Cir. June 2, 2026). The Fourth Circuit granted en banc rehearing of panel decisions holding Maryland and West Virginia laws preempted. The state laws require drug manufacturers participating in the Medicaid 340B drug-rebate program to further discount their drugs to sell to contract pharmacies in the States. There is a circuit split over similar state laws.

AbbVie, Inc. v. Brown, No. 24-1939, and PhRMA v. McCuskey, No. 25-1054 (4th Cir. June 2, 2026). The Fourth Circuit granted en banc rehearing of panel decisions holding Maryland and West Virginia laws preempted. The state laws require drug manufacturers participating in the Medicaid 340B drug-rebate program to further discount their drugs to sell to contract pharmacies in the States. There is a circuit split over similar state laws.

The Eleventh Circuit (W. Pryor, Abudu, Conway) affirmed the denial of a preliminary injunction in a childcare provider’s constitutional challenge to its dismissal from a Georgia voucher program. Under the Mathews v. Eldridge balancing test for procedural due process claims, the provider was not entitled to a pre-deprivation hearing. Assuming (without deciding) that the provider has a property interest in its continued participation in the program, that interest is less weighty than that of a welfare or disability-benefits recipient. The risk of erroneous deprivation is lessened where the provider’s dismissal was primarily based on its failure to comply with an on-site investigation. And the government has significant interests in child safety and in conserving resources.

The Fifth Circuit (King, Duncan, Engelhardt), following remand for further consideration in light of FCC v. Consumers’ Research, 606 U.S. 656 (2025), reissued its earlier decision (107 F.4th 415 (July 5, 2024)) holding that the enforcement provisions of the Horseracing Integrity and Safety Act of 2020 violated the private nondelegation doctrine. HISA unconstitutionally delegated enforcement power by permitting a private entity, the Horseracing Integrity and Safety Authority, to enforce the Act without sufficient executive oversight. Consumers Research did not require a different result because it articulated the private nondelegation doctrine the same way and was distinguishable because the Authority, unlike the entity at issue in Consumers Research, did not function subordinately to the agency.

The Fourth Circuit (Gregory, Wynn, Thacker) denied environmental plaintiffs’ motion for a stay pending review of a water-quality certification issued by a North Carolina agency for the Southgate Pipeline Project. Although the final three stay factors tilted modestly in the challengers’ favor, they had not made the requisite strong showing of likelihood of success on the merits of their claims that the certification was arbitrary and capricious.

The Tenth Circuit (Bacharach, Ebel, Kelly) affirmed the dismissal of trapper organizations’ constitutional challenge to a New Mexico law prohibiting trapping. The state law exempts trapping by members of federally recognized Tribes when conducted solely for religious or ceremonial purposes. The trappers (who are not tribal members) claimed that this exemption violated the Equal Protection and Establishment Clauses. The trappers lack standing based on the denial of their opportunity to trap, because success on their constitutional claims would not redress that injury; if the exemption were held unlawful, it would be severed. And the trappers’ claimed psychological and stigmatic injuries were not ripe, because a New Mexico agency had yet to issue necessary rules implementing the exemption. Alternatively, those injuries are not cognizable because the trappers’ theory of stigmatic harm is too abstract and amounts to a generalized grievance.

The Seventh Circuit (Sykes, St. Eve. Maldonado) affirmed on different grounds the dismissal of a putative class action challenging an Illinois agency’s rejection for hypertechnical or baseless reasons of the plaintiffs’ admissions packets for long-term care facilities. Although the district court had dismissed the action for failure to state a claim, the plaintiffs in fact lacked standing. They sought only injunctive relief and showed no real and immediate threat of repeated future injury. The rejection of their admission packets did not harm them: While the rejection meant that the facilities were not reimbursed for a portion of their care, and they received the bills instead, those bills were meaningless, because beneficiaries are not liable for the cost of unreimbursed care.

The Federal Circuit (Reyna, Taranto, Stoll) affirmed the dismissal of an advocacy organization’s suit seeking to compel Customs and Border Protection to investigate whether cocoa products imported from Côte d’Ivoire are produced using child labor in violation of the Tariff Act. The organization alleged that it suffered financial harm as a result of CBP’s lack of action on its petition, including by expending resources on its own ongoing investigations to provide the agency with the updated information it requested. But this merely amounts to an allegation that the organization’s mission has been compromised by the agency’s inaction—which FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), forecloses—not that the organization’s customer-service activities have been impeded. And the organization’s costs to get the agency updated information were self-inflicted.

The Seventh Circuit (Ripple, Lee, Kolar) affirmed the dismissal of claims challenging the United States Citizenship and Immigration Services’ rejection of petitions to classify a noncitizen spouse as an immediate relative under federal immigration law. Because that rejection was premised on the government’s determination that the citizen spouse failed to show he posed no risk to his noncitizen spouse, and that determination is entrusted by statute to the agency’s sole and unreviewable discretion, it is unreviewable by law. The couple could not evade that problem by challenging the legal standard and processes the agency deployed in rejecting their petitions, because the statutory phrase “determine” denoted that Congress committed to agency discretion the process as well as the outcome. That conclusion accords with the reasoning of six circuits but splits with the D.C. Circuit, rejecting the latter court’s reliance on the Administrative Procedure Act’s presumption favoring judicial review. The one claim for which there was no jurisdiction-stripping failed on the merits.

The Fourth Circuit (Rushing, Heytens, Floyd) denied a petition for review of a Department of Health and Human Services administrative-enforcement action against a nursing home participating in Medicare that failed to follow internal infection-control policies. The nursing home claimed that HHS’s civil-penalty enforcement proceedings violated its Seventh Amendment right to a jury trial. The public-rights exception to the Seventh Amendment applies—allowing Congress to assign the claim’s adjudication to an agency—because HHS’s claim of a Medicare-condition violation, like the claim at issue in Atlas Roofing Co. v. Occupational Safety & Health Review Commission, 430 U.S. 442 (1977), is unknown in the common law.

The D.C. Circuit (Pan, Garcia, Edwards) denied petitions for review by transmission owners and the Louisiana Public Service Commission challenging the Federal Energy Regulatory Commission’s decision to approve retroactive refunds after retroactively adjusting a rate. The transmission owners’ argument failed because FERC set the new retroactive rate to cure a defect previously identified by the court, and the Federal Power Act authorizes retroactive changes in rates in response to court rulings. The transmission owners lacked standing to pursue their alternative claim that FERC erred by permitting multiple complaints challenging the rate because an order barring FERC from considering successive complaints would not redress any past harm from having had to defend against successive complaints and it is speculative whether they would be forced to do so again. The Louisiana Public Service Commission’s petition likewise failed. The Public Service Commission had standing, notwithstanding its failure to advance a complete standing argument until its reply brief, because it was obvious that the Public Service Commission’s customers were subject to the rates. But on the merits, the Public Service Commission’s arguments were barred by law-of-the-case or reasonably rejected by FERC.

The D.C. Circuit (Pillard, Walker, Ginsburg), in a per curiam decision, held that the Interstate Commerce Commission Termination Act does not preempt a state law giving a Massachusetts town the right to purchase forest land that is being sold for conversion to a residential, industrial or commercial use. The Surface Transportation Board correctly denied a railroad purchaser’s petition to preempt the law, because the ICCATA preempts only state laws that “have the effect of managing or governing rail transportation,” and the state law at issue was a generally applicable property-acquisition law.