Bulletin of Developments in Environmental and Administrative Law

The U.S. District Court for the Western District of Washington (Cartwright) dismissed without prejudice a challenge by states to the Environmental Protection Agency’s termination and recission of the vast majority of grant funds under the Solar for All program. In light of the Supreme Court’s stay orders in Department of Education v. California and National Institutes of Health v. American Public Health Association, the plaintiffs’ requested remedy ultimately was (even if they had not asked for) reinstatement of the grants. Given that, the Tucker Act requires them to bring their claims in the Court of Federal Claims.

The U.S. District Court for the District of Columbia (Contreras) granted an association of commercial fishermen a preliminary injunction in their challenge to permits issued to four states that exempted certain information collection activities from federal requirements. The relevant plain text of the statute required these permits—known as exempted fishing permits—to address various needs specified in the statute, several of which relate to preventing overfishing. This reading was also consistent with longstanding agency practice. Here, the agency granted the permits without grappling with evidence that they would lead to overfishing. Because the agency failed to address an important aspect of its decision, the permits were likely arbitrary and capricious. The other equitable factors also supported a preliminary injunction.

The Fifth Circuit denied rehearing en banc of a decision that concluded that state sovereign immunity did not bar certain challenges to Texas’s Election Protection and Integrity Act of 2021. Judge Oldham (joined by Judges Jones, Smith, Willett, Ho, and Engelhardt) dissented from the denial of rehearing to express his concerns that the Fifth Circuit has taken too expansive an approach to Ex parte Young.

The Sixth Circuit denied rehearing en banc of a decision (see Issue 26.5) affirming the dismissal for lack of standing of a putative class action challenging a grant program limited to Black-owned small businesses where the putative class representative did not actually apply for the program. Judge Thapar dissented from denial, reasoning that victims of discrimination need not engage in the futile gesture of applying for benefits that are unavailable to them because of their race. Judge Hermandorfer, joined by Judge Griffin, also dissented, reasoning that because the relevant injury inflicted by a racial exclusion is the denial of equal treatment, and nominal relief alone can redress legal injuries, those who are able and ready to compete for contracts, yet couldn’t because of their race, have standing to vindicate their “equal footing” injuries. Both opinions claimed that circuit precedent was muddying the waters.

The Eleventh Circuit (Rosenbaum, Lagoa, Marcus) dismissed an attorney’s Fair Debt Collection Practices Act suit for lack of Article III standing. The attorney’s FDCPA claim was based on actions a collector and its law firm took in litigation against the attorney’s client (a consumer debtor) that caused a court to enter a wrongful default judgment against the client; the attorney claimed standing based on the time and effort he spent responding to the default judgment and emotional harm. But each of those injuries “traces back to harm that belonged to [the client],” not him. And because the attorney himself was not threatened with a cognizable harm, he could not base standing on the time and effort expended to avoid that harm. The attorney also claimed a reputational harm, which does qualify as a sufficient injury under the TransUnion test. But there was no cognizable reputational injury here because the attorney failed to allege that information about his professional competence was transmitted to anyone (like a court or other clients).

The D.C. Circuit, in a split decision, affirmed a preliminary injunction enjoining the use of the Hegseth Policy to expel current transgender service members while vacating the preliminary injunction as it relates to those seeking accession into the military. The Court narrowed the injunction to the named plaintiffs. Judge Wilkins supported that result in full, concluding that the Hegseth Policy is arbitrary and based on animus, in violation of the Equal Protection Clause, but also reasoning that the balance of equities and public interest justified an injunction only for those who are currently serving, and not those who seek to join the military. Judge Rogers concurred in part and dissented in part from that result, because she would have affirmed the injunction as to both retention of current service members and accession. Judge Walker dissented, because he did not believe the policy was unconstitutional.

The D.C. Circuit (Pillard, Garcia, Edwards) dismissed a petition for review by a property development company seeking to abrogate Federal Aviation Administration messages advising a city that approving a proposed housing development would be inconsistent with the federal funding obligations for a city-operated airport. The developer failed to offer any evidence showing that vacating the FAA’s actions would result in the city approving its housing development. Indeed, the developer failed to make any standing argument in its opening brief, in violation of Circuit Rule 28.

The Ninth Circuit (Bybee, Friedland, Miller) reversed a summary judgment in favor of an oil and gas producer that sought declaratory relief under the Naval Petroleum Reserves Production Act to prevent an Alaska conservation commission from disclosing certain well data. The Production Act did not expressly preempt a state statute requiring the release of the data because the Act neither contained nor referenced any clear statement of preemption. A Department of Interior regulation did not expressly preempt the statute either. Federal regulations cannot preempt state law unless they fall within the scope of an agency’s delegated authority and the agency must have meant to preempt state law. The regulation did not satisfy that standard. The producer’s obstacle preemption theory also failed.

The Eleventh Circuit (Rosenbaum, Grant, Brasher) reversed the dismissal of a suit seeking unpaid pension benefits under the Employee Retirement Income Security Act. The case centered on a statutory-interpretation dispute about what constitutes “actuarial equivalency” for certain annuities. As relevant here, a Treasury Department regulation—promulgated shortly after Congress passed ERISA—is “informative.” Even though this regulation technically interprets a tax code provision—not ERISA—both statutes contain identical language and were enacted (and later amended) at the same time. Although this tax regulation is no longer binding on courts after Loper Bright, it still holds the “power to persuade,” and its contemporaneous promulgation warrants “respect.”

The Ninth Circuit (Paez, Christen, Desai), in a per curiam opinion, affirmed in part and reversed in part a preliminary injunction ordering several federal grantmaking entities to reinstate University of California research grants terminated pursuant to certain Executive Orders. The plaintiffs, two provisionally certified classes of UC researchers, suffered an Article III injury-in-fact from their loss of grant funds, reputational harm, disruption of projects, and the need to expend time and resources seeking alternative funding sources. The class challenging their terminations by form letter was not likely to succeed on the merits because its claim was essentially a contract action for which the Tucker Act barred jurisdiction. The class challenging the termination of grants under anti-diversity, equity, and inclusion Executive Orders was likely to succeed on the merits of its First Amendment claim.

The D.C. Circuit (Millett, Walker, Pan) affirmed a grant of summary judgment for the Federal Highway Administration in a National Historic Preservation Act challenge brought by the Narragansett Indian Tribe to the mitigation measures the Highway Administration required to address adverse impacts that reconstructing parts of I-95 would have on the Covelands Archeological district. The Tribe established procedural standing: Had the agency engaged in additional consultation, the Tribe might have secured additional protection for the district. On the merits, the Highway Administration was not required to make the Tribe a required signatory to the Programmatic Agreement establishing mitigation and met its statutory consultation obligations.

The Eleventh Circuit (Pryor, Abudu, Conway) vacated the judgment in T-Mobile’s Telecommunications Act suit against a city based on the city’s denial of a permit to build a cell phone tower. The Act bans state and local “regulation” that “prohibit[s] or ha[s] the effect of prohibiting” the provision of cellular service. Seven other circuits have applied a “significant gap” test to decide whether a denial of a land-use permit qualifies as an “effective prohibition” of service; under that test, the cellular provider must show that there is a significant gap in its service coverage and that the denied action was the least intrusive means of closing that gap. Breaking with all of those courts, the Eleventh Circuit held that the denial of a single permit does not constitute “regulation” in the first place, and that the significant gap test lacks any statutory grounding. Instead, the carrier must challenge the generally applicable rule under which the permit is denied.

The Eighth Circuit (Loken, Gruender, Grasz) vacated for lack of standing the dismissal of a facial due process challenge to a county policy requiring inmates released from jail to sign confessions of judgment requiring them to pay jail fees. The inmates had standing to seek nominal and compensatory damages: The deprivation of their protected property interests constituted an injury in fact. That injury was traceable to the county process even though the inmates could have owed the same fees under a constitutionally adequate process because such a process would have provided them with opportunities to challenge jail fee collection. And they had standing to seek injunctive or declaratory relief because their injury would recur if the county used their confessions to collect more money by, for example, formally filing the confessions. Their procedural injury was traceable to the county because the injunctions they sought would bar the county from using the confessions and redress that injury. That was true notwithstanding the fact that the county had not yet filed the confessions because standing can be based on risk of harm or payments made to avoid harm.

This petition from a Federal Circuit decision presents the question whether the Surface Transportation Board’s issuance of a Notice of Interim Trail Use and accompanying authorization of recreational trail use triggers a per se categorical physical taking under the Trails Act.

This petition from a Missouri Court of Appeals decision presents the questions (1) whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a label-based failure-to warn claim where the Environmental Protection Agency has not required the warning (this is the question presented in Monsanto Co. v. Durnell, No. 24-1068); and (2) whether due process permits the entry of multiplicative nine-figure awards of punitive damages in multiple suits for a single, inseparable act.

This petition from a D.C. Circuit decision presents the questions (1) whether courts may defer to an agency’s legal interpretation of a statute because an agency applied the statute to undisputed facts, despite the Court’s holding in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024); and (2) whether an appliance’s ability to operate in existing homes and buildings without renovation is a “performance characteristic” that the Energy Policy and Conservation Act prohibits the Department from eliminating.

This petition from a Third Circuit decision presents the question whether the Third Circuit’s denial of the Pennsylvania Attorney General’s motion to intervene in a case where the Pennsylvania Public Utility Commission suddenly stopped defending a state statute against a federal preemption claim was contrary to the Court’s decisions in Cameron v. EMW Women’s Surgical Ctr., 595 U.S. 267 (2022), and Berger v. North Carolina State Conf. of the NAACP, 597 U.S. 179 (2022).

This petition from a Georgia Supreme Court decision presents the questions (1) whether the Takings Clause applies to municipal ordinances imposing fees on classes of property outside the permitting context; and (2) if so, whether the framework from Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), governs the analysis of such fees.

This petition from a California Court of Appeal decision presents the questions (1) whether the Takings Clause’s protection against unconstitutional permit conditions encompasses an evidentiary requirement (as opposed to a legislative process) by which the government bears the burden to demonstrate that its development permit exaction complies with the “rough proportionality” standard from Dolan v. City of Tigard, 512 U.S. 374 (1994); and (2) whether an impact fee can be roughly proportional when imposed on one discrete class of development (residential) for the purpose of addressing impacts caused by another discrete class of development (commercial).

The Court denied Florida’s motion for leave to file a complaint against Washington and California for their alleged defiance of federal law by providing commercial driver’s licenses to certain noncitizens. Justice Thomas (joined by Justice Alito) dissented from the denial of the motion to express his doubts that the Court has discretion to refuse cases within its original jurisdiction.