Bulletin of Developments in Environmental and Administrative Law

The Supreme Court of Washington held unconstitutional a ballot initiative that, among other things, banned local governments from discouraging or prohibiting the use of natural gas. The initiative violated the Washington State Constitution’s single-subject requirement because it regulated “several discrete subjects . . . with substantially distinct regulatory effects,” such as requiring statewide access to natural gas, limiting local authority over air quality standards, and amending statewide building codes. While the initiative contained a severability clause, the fact that the initiative contained multiple unrelated subjects made severability improper. Because discerning which subject (if any) would have commanded majority support on its own was impossible, the entire initiative was unconstitutional.

The Supreme Court of Indiana heard oral argument in a case presenting the question whether Indiana should embrace the doctrine of associational standing.

The D.C. Circuit (Wilkins, Garcia), in a per curiam order, denied the government’s request for a stay pending appeal of a preliminary injunction of the Bureau of Prisons Program Statement 5260.01, which prioritized providing psychotherapy rather than gender-affirming care. The government was not likely to succeed on the merits because the statement was arbitrary and capricious for failing to consider the BOP’s own experience providing gender-affirming care, and the government failed to show that the order violates the Prison Litigation Reform Act or impermissibly grants class-wide relief. Judge Walker dissented, because he took a different view of the PLRA question and would have found that the government was likely to suffer irreparable harm.

The Ninth Circuit, sitting en banc (Owens), reversed an injunction blocking the implementation of Hawaii’s firearm licensing regime on Second Amendment grounds. Because Hawaii is a “shall-issue” jurisdiction (so long as an applicant satisfies certain conditions, they may obtain a firearm), Bruen’s two-part test (N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)) does not apply, the regulations are presumptively lawful, and plaintiffs did not rebut that presumption. Judge Nelson, joined by Judges Bress and VanDyke and in part by Judges Bade and Forrest, dissented, disagreeing with the reading of Bruen to create a carve-out for “shall-issue” jurisdictions. Judge Forrest, in a separate dissent, would have affirmed the district court on the merits and remanded with instructions for the district court to narrow is permanent injunction in light of Trump v. CASA, 606 U.S. 831 (2025), because there was no need to enjoin enforcement of the challenged laws against anyone other than the plaintiffs to afford them complete relief. Judge VanDyke, in a separate dissent, proposed “bright-line” rules that he believed would resolve most Second Amendment cases.

The D.C. Circuit (Henderson, Rao) vacated an injunction against the enforcement of regulations prohibiting demonstrations on the eastern steps of the Capitol unless sponsored by a member of Congress. The district court correctly concluded that the regulations violated the First Amendment, but erred in granting a universal injunction where it was not necessary to provide complete relief to the plaintiff. To reach that result, the panel excused the government’s forfeiture of that objection. Judge Rogers partially dissented, because she would have affirmed aspects of the district court’s analysis the majority rejected.

The Ninth Circuit (Owens, Sung, H.A. Thomas) affirmed in part and reversed in part a partial summary judgment for the United States on its claims challenging the constitutionality of certain Idaho stockwater amendments. The amendments were issued after a state court’s final decree in the Snake River Basin Adjudication, which confirmed certain stockwater rights on federal land. The district court had jurisdiction to decide the case: The doctrine of prior exclusive jurisdiction (which provides that when one court is exercising in rem jurisdiction, a second court will not assume in rem jurisdiction over the same res) did not apply. Nor were the requirements for abstention under Burford v. Sun Oil Co., 319 U.S. 315 (1943), met. On the merits, an Idaho amendment that established a procedure for determining whether a rightsholder had forfeited its rights was unconstitutional as applied to the United States. The statutory scheme was designed to divest the United States of its decreed water rights and discriminated against the United States in violation of the Supremacy Clause. A separate provision, which changed the appurtenance rules for stockwater rights that were (1) acquired under state law but (2) associated with grazing on federally owned or managed land was facially unconstitutional under the Supremacy Clause.

The Ninth Circuit (S.R. Thomas, Miller, Blumenfeld*) affirmed a sentence in a case in which the district court applied a sentencing enhancement. Guidelines commentary extending the enhancement to encompass certain convictions was entitled to Kisor deference (Kisor v. Wilkie, 588 U.S. 558 (2019)) because, after exhausting the tools of construction, the commentary was ambiguous as to whether the enhancement reaches conduct outside the offense of conviction and the commentary’s interpretation permitting the consideration of such conduct was reasonable. The defendant’s alternative arguments failed as well.

The Ninth Circuit (S.R. Thomas, Miller, Blumenfeld*) affirmed dismissal in part of programmers’ action alleging that a code storage platform’s artificial intelligence tools violated the Digital Millenium Copyright Act by reproducing the programmers’ code without attribution. The programmers had Article III standing because they plausibly alleged a substantial risk that the AI tools would produce verbatim, near-verbatim, or modified copies of their code. Academic research that large language models sometimes produce training data verbatim, a duplication-detection feature built by the platform to block suggestions matching public code, and examples in the complaint sufficed to render the risk of harm non-conjectural. On the merits, however, the complaint did not state a claim.

The Tenth Circuit (Holmes, Tymkovich, Moritz) reversed a grant of summary judgment to environmental plaintiffs in a National Environmental Policy Act and Clean Water Act challenge to the Army Corps of Engineers’ permitting of a dam project near Boulder, Colorado. The case was not moot, even though the activity authorized by the Corps’ CWA Section 404(b) permit—discharging fill at the foot of the dam—was complete. A remand could still lead to additional mitigation measures or special conditions. The Corps did not define the proposed project’s purposes too narrowly and thereby exclude less damaging practicable alternatives (which a CWA regulation requires the Corps to evaluate). The project addressed two primary needs, and it was proper to consider only alternatives that could accomplish both. The Corps’ analysis of the proposed project’s cost and the alternatives’ costs was not arbitrary and capricious, and the Corps adequately considered climate change in evaluating the project’s feasibility. The NEPA claims failed for substantially the same reasons.

The Eighth Circuit (Loken, L.R. Smith, Stras) reversed the dismissal for lack of standing of claims that the Minnesota Board of Medical Practice violated a physician-politician’s constitutional rights when it investigated claims that he spread misinformation or posed a danger to public health when he advocated opposition to vaccine mandates and other COVID-19 mitigation measures. Time and money the physician spent preparing responses to the Board’s investigation, hiring counsel, and assembling paperwork amounted to a classic Article III injury. And his allegations of “self-censorship” on the campaign trail created a plausible inference that his speech was chilled, notwithstanding limited specifics in his complaint. That chilling effect qualified as an ongoing injury supporting injunctive relief because he remains a candidate for public office. Money damages would redress his monetary injuries.

The Fifth Circuit (Higginbotham, Jones, Southwick) granted a petition for review and vacated a Toxic Substances Control Act risk determination and rule relating to methylene chloride. The Environmental Protection Agency lacked authority under TSCA to determine that a chemical or substance poses unreasonable risk “as a whole,” rather than evaluating each of its conditions of use. The EPA also violated TSCA and failed to explain a change in position when it refused to consider use of personal protective equipment as a condition of use. The EPA—by setting exposure limits that the court deemed overly low—also failed to comply with the requirement that it regulate only unreasonable risks. Finally, even if the EPA had properly addressed only unreasonable risk, the EPA’s near-complete prohibition on the substance exceeded its authority only to regulate risk “to the extent necessary,” and it erred when it declined to consider whether such restrictions would leave real alternatives. The court denied an environmental group’s petition for review, concluding that the EPA sufficiently addressed risks to fenceline communities and adequately considered risks to those who are more susceptible to cancer. The environmental group lacked standing to challenge whether the EPA failed to evaluate the substance’s depletion of the ozone layer because it was speculative that the absence of regulation would harm the group’s members.

The Second Circuit (Calebresi, Park, Nardini), on reconsideration, overruled an earlier decision that held that associations cannot bring claims on behalf of their members under 42 U.S.C. § 1983 and instead adopted the Hunt test (Hunt v. Washington State Apple Advertising Com’n, 432 U.S. 333 (1977)) for associational standing for such claims. The panel remanded to the district court to apply that standard.

The Ninth Circuit (Graber, Callahan, Koh) affirmed a summary judgment against a church on its constitutional claims challenging a state contraceptive and abortion coverage requirement and a conscience statute enabling health carriers to accommodate objections to abortion by offering tailored health plans. Having vacated a prior panel opinion (see Issue 25.6) in light of Diamond Alternative Energy v. Environmental Prot. Agency, 606 U.S. 100 (2025), the panel now held that the church’s theory of injury via indirect facilitation of abortion sufficed to establish standing. Following the enactment of the coverage requirement, the provider from which the church obtained a group health plan included abortion coverage and declined to accommodate a conscience-based exclusion. And it was a “commonsense economic reality” that, if the group health plan made abortion services more affordable to the church’s employees and their families, the employees and their families would be more likely to access those services, and thus for the church to indirectly fund them. The church’s claims failed on the merits, however. Judge Callahan concurred as to standing but dissented on the merits.

The Fifth Circuit (Stewart, Graves, Wilson) reversed a decision denying intervention by conservation groups in defense of an endangered species listing after the Fish and Wildlife Service abandoned the defense. The denial of intervention was appealable, notwithstanding that the district court had granted vacatur and remand of the listing, because the groups had intervened prior to that vacatur order and could make arguments that the listing was lawful. The motion to intervene was timely because it came soon after the conservation groups learned that the government would not protect their interests, and any delay in moving to intervene had not prejudiced the existing parties. The conservation groups also established that the government would inadequately represent their interests. The conservation groups lacked appellate standing to challenge the vacatur of the listing itself, however, because they did not sufficiently establish concrete plans to observe animals of an endangered species.

The D.C. Circuit (Srinivasan, Pillard, Wilkins) granted a petition for review in a challenge to a Department of Energy order that prevented the retirement of a coal plant using its emergency authority under the Federal Power Act. The emergency provision, Section 202(c), permits the Department to use its emergency authority to address energy shortages only when there is a need for immediate action by the Department in particular—that is, when existing State and other planning processes cannot respond. The Department’s order did not establish such an emergency, and so the Court vacated the order.

The Ninth Circuit (Paez, Bumatay, Baggio*) affirmed the dismissal on sovereign immunity grounds of an action seeking declaratory and injunctive relief against enforcement of the Washington State Energy Code on the theory that the Code is preempted by the Energy Policy Conservation Act. Sovereign immunity shielded the defendants—the individual members of the State Building Code Council who adopted the Code and the Attorney General—because they had no connection to the Code’s enforcement. Neither their promulgation of the Code itself, nor their advisory function, supplied that connection, and the Attorney General had no role beyond the generalized duty to enforce state law. Judge Bumatay concurred in the judgment, reasoning that while the plaintiffs “raise strong points” in light of California Restaurant Association v. Berkeley, 89 F.4th 1094 (9th Cir. 2024), the State’s sovereign immunity required dismissal.

The Ninth Circuit (Bennett, Sanchez, Ezra*) dismissed as moot consolidated appeals by the National Collegiate Athletic Association from preliminary injunctions in antitrust actions under Section 1 of the Sherman Act that had allowed college football players to play in the 2025 season. The appeals were moot because the injunctions had expired and the players’ collegiate careers were over; no effective relief could be granted to the NCAA. The NCAA failed to establish that the mootness exception for controversies capable of repetition yet evading review applied because that doctrine applies only when there is reason to expect future litigation of the same issue between a present complaining party and a present defending party. It was immaterial that the NCAA might be subject to similar lawsuits by other players in the future.

This petition from a Ninth Circuit decision presents the question whether the Comprehensive Environmental Response, Compensation, and Liability Act authorizes damages for the felt loss of a cultural connection to natural resources.

This petition from a Tenth Circuit decision presents the question whether Rule 23 of the Federal Rules of Civil Procedure and Article III of the U.S. Constitution permit a court to certify a class and award all members damages when the class never identifies any feasible way to ascertain who is part of the class or has standing to recover sought damages.

This petition from a Ninth Circuit decision presents the question whether the intelligible-principle test remains the appropriate standard for evaluating delegations of legislative power when the resulting regulations define the elements of a federal crime, or whether the nondelegation doctrine requires a more stringent standard when Congress delegates to the Executive the authority to fix the boundary between lawful conduct and criminal liability.