Bulletin of Developments in Environmental and Administrative Law

The Eleventh Circuit (Branch, Luck, Lagoa) ordered the removal of a city’s state-law suit against a manufacturer and a power company for torts related to their pollution of a site. Removal under the federal-officer removal statute was proper because the defendants’ liability arose out of their obligations under a consent decree with the Environmental Protection Agency. In carrying out the consent decree, the defendants were not merely acting as regulated entities but rather in the EPA’s stead—as the Comprehensive Environmental Response, Compensation, and Liability Act would have otherwise obligated the EPA to remediate the site itself. The city’s tort claims are “closely connected” to the defendants’ consent-decree activities, as Chevron U.S.A. Inc. v. Plaquemines Parish, 146 S. Ct. 1052 (2026), requires. And the defendants have a colorable claim that CERCLA preempts state-law liability.

The en banc Fifth Circuit (Jones) affirmed a decision finding that property owners lacked standing to sue a district attorney, sheriff, and police chiefs to invalidate a state statute criminalizing carrying guns onto premises where a property owner prohibits firearm possession. The property-owner plaintiffs challenged the law because, in their view, it required them to post signage with specific statutory requirements. The plaintiffs lacked standing to press their claim because the statute did not require posting signage to receive protection (they could instead provide an oral warning or summon law enforcement to do so), and it was speculative to assume that the statute would cause law enforcement to violate plaintiffs’ right to exclude. Redressability also was lacking because the court could not rewrite the statute or compel law enforcement to arrest and prosecute permitted conduct. The majority rested on traceability and redressability, but expressed doubts about whether there was injury in the first place. Judge Willett (joined by Judge Elrod) concurred to explain that the majority erred when it suggested that redressability was absent simply because the requested relief should not issue. Instead, the relevant question was whether the requested relief, if granted, would remedy the asserted injury. Judge Higginson dissented because he viewed the statute as burdening plaintiffs right to exclude. Judge Douglas (joined by Judges Graves and Higginson) also dissented, explaining that the record showed that the law burdened plaintiffs because, absent a specialized sign, gun owners were comparatively undeterred and that striking the heightened signage requirements could reduce plaintiffs’ harms.

The D.C. Circuit (Millett, Walker, Childs), in a per curiam decision, denied petitions for review challenging the Federal Energy Regulatory Commission’s order directing transmission providers to overhaul how they process grid interconnection requests (Order 2023). The Clean Energy Petitioners, who challenged Order 2023’s rule setting the threshold at which an interconnection customer can withdraw without a fee, had standing because the record established that at least one member participates in the interconnection queue as a customer and was developing projects that would be subject to the fines. The respondent-intervenor Clean Energy Advocates had standing to defend the order and, in particular, the fees the order imposed on transmission providers and system operators for missing study deadlines, because vacating the study-delay incentive scheme would result in renewed interconnection delays and expose their members to higher electricity costs. The panel left for another day whether respondent-intervenors were required to establish standing when they intervene on behalf of the government. On the merits, each of three aspects of the order survived review: (1) the thresholds for fine-free withdrawal were not arbitrary and capricious; (2) the incentive system for timely completion of interconnection was within the FERC’s statutory authority, was not arbitrary and capricious, and did not yet pose any takings or due process problem; and (3) the FERC’s choice of model for the affected-system studies was not arbitrary and capricious.

The State of New York sought Court of Appeals review as to whether New York City’s foie gras ban unreasonably restricts farm operations by preventing those farms from accessing their principal market, and is therefore preempted by state law.

The New Jersey Supreme Court held that, when a municipal ordinance authorizes taking private property for public use, the ordinance need not identify the particular public use intended for that property. Nothing in the state’s Eminent Domain Act or the Local Lands and Buildings Law required a municipality to specify the purpose for which it was taking private property. As a matter of best practice, however, municipalities should identify that intended public use “as early as practicable.”

The Supreme Court of Michigan vacated the Michigan Public Service Commission’s approval of a proposal to reroute the Enbridge Line 5 oil pipeline under the Great Lakes. The Commission violated the Michigan Environmental Protection Act when it (1) failed to consider whether the project would extend Line 5’s operational life and therefore result in additional pollution; (2) incorrectly evaluated potential alternatives; and (3) failed to consider the effect of the pipeline on public trust resources. Moreover, the lower court erred in deferring to the Commission’s analysis, rather than applying de novo review.

The Ohio Supreme Court heard oral argument on whether federal tobacco laws preclude state officials from targeting sales of flavored vapes and e-cigarettes under Ohio consumer protection law.

The U.S. District Court for the District of Oregon (Immergut) denied a motion to dismiss and granted a preliminary injunction in wind trade associations’ and environmental groups’ challenges to the Department of Defense’s freeze of review of wind energy projects. The motion to dismiss failed because, among other things, the freeze was final agency action because the DoD had not executed an agreement for a wind energy project since August 2025, and associational standing existed because the individual participation of the trade associations’ members was not required. The challengers were likely to succeed on the merits because the freeze violated statutory and regulatory deadlines for the execution of wind-energy project agreements. Nationwide relief was needed to avoid a patchwork of statutory requirements that varied across the country.

The en banc D.C. Circuit, in a per curiam decision, affirmed a preliminary injunction preventing the Environmental Protection Agency from effectuating its March 11, 2026 notice terminating grants and seeking to claw back funds already dispersed. Six judges (Millett, Pillard, Wilkins, Pan, Garcia) concluded that the EPA’s actions violated Section 60103 of the Inflation Reduction Act. Five of those judges would have affirmed the entire preliminary injunction, notwithstanding the repeal of Section 60103, while Judge Millett viewed the repeal as requiring vacatur or modification of injunction. Four Judges (Srinivasan, Katsas, Rao, Walker) would have vacated the preliminary injunction its entirety due to the repeal of Section 60103. The issues on which the court was equally divided were affirmed by operation of D.C. Circuit Rule 40(d).

The Sixth Circuit granted en banc rehearing of a panel decision (see Issue 25.17) denying petitions for review of a Federal Communications Commission rule imposing reporting requirements on telecommunications providers in the event of data breaches involving customers’ personally identifiable information, rejecting the petitioners’ statutory interpretation and Congressional Review Act challenges.

The D.C. Circuit (Henderson, Pillard, Wilkins) reversed a decision that held that the Fish and Wildlife Service’s interpretation of 16 U.S.C. § 1533(e) of the Endangered Species Act was invalid. Section 1533(e) allows the Service to treat a species as endangered or threatened if it is similar in appearance to a species that is so listed. But the Service had interpreted that provision not to apply when a species is already listed as endangered or threatened. The provision’s text and contemporaneous regulations confirmed the Service’s interpretation was correct.

In a per curiam decision, the D.C. Circuit (Srinivasan, Rao, Walker) vacated an Administrative Procedure Act Section 705 stay of two government actions intended to subject noncitizen parolees to expedited removal because the plaintiff membership organizations lacked standing. The Section 705 stay was immediately appealable under 28 U.S.C. § 1292(a)(1) because it had the practical effect of granting an injunction. The plaintiffs lacked standing because they failed to show that vacating the two challenged government actions would likely reverse the trend of increased expedited removals, given that such relief would not impact a regulation allowingthe government to subject parolees to expedited removal. This redressability problem did not deprive the government of standing to appeal, because standing is based on the order sought but appellate standing is based on the order entered, and the latter could have been plausibly read to further restrict expedited removal of parolees beyond what plaintiffs sought.

The Fourth Circuit (Quattlebaum, Benjamin, Berner) granted a noncitizen’s petition for review and remanded for further proceedings on her asylum application. As relevant here, because the Board of Immigration Appeals had relied on one ground to deny the asylum claim, the court did not evaluate whether the claim might fail on other grounds. Judge Quattlebaum concurred, questioning whether the administrative rule of harmless error—as recently articulated by the Supreme Court in FDA v. Wages & White Lion Investments, L.L.C., 604 U.S. 542 (2025)—might properly require the court of appeals to evaluate those alternative grounds itself, rather than interpreting the Chenery principle to require a remand. Here, however, the government had not asked the court to decide the case on those alternative grounds.

The Ninth Circuit (Rawlinson, Bumatay) affirmed the dismissal of a utility’s Dormant Commerce Clause challenge to a Washington decarbonization and cap-and-trade program. To mitigate the burden of the program on electricity customers, the program allocated greenhouse gas emissions allowances to the utility for electricity sold in the state, but not electricity exported elsewhere. The expense of purchasing allowances for exported electricity conferred standing on the utility to challenge the program even if it might eventually pass those costs on to its customers. But because of regulatory differences between in-state electricity producers and exporters, the utility did not plausibly allege that the program’s regulations or allowances were applied to similarly-situated entities. Judge Bress dissented, reasoning that the program facially discriminates against interstate commerce by imposing greater costs on interstate electricity sales, and that because the case was at the pleading stage, the proper course was to remand for factual development as to whether the program’s compliance costs and allowances were roughly equivalent in a way that would justify otherwise discriminatory treatment.

The en banc Ninth Circuit (Johnstone) vacated a preliminary injunction enjoining enforcement of Arizona election-law amendments that required cancellation of voter registration when voters move and register to vote in a new county, and that criminalize knowingly providing a mechanism for voting to someone registered in another state. Organizational plaintiffs had standing to challenge the latter but not the former. Circuit precedent that did not ask whether challenged conduct directly affected and interfered with plaintiff organizations’ core activities was overruled as inconsistent with FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024). Because the organizations did not clearly show that the cancellation provision affected and interfered with their voter registration and education efforts, they did not establish a sufficiently concrete and particularized injury in fact to challenge it. The felony provision, however, was subject to the lower threshold for standing in pre-enforcement challenges. The organizations faced a credible threat of prosecution for voter registration and education effort. But they were not likely to prevail on the merits of the claim. Judge Bress, joined by four colleagues, concurred only in the judgment as to the cancellation provision, reasoning that the majority reached the right result on the cancellation provision but failed to engage with the core reasoning of Alliance for Hippocratic Medicine. Judge VanDyke concurred similarly and would have adopted a lower threshold for three-judge panels to modify circuit precedent in light of intervening Supreme Court decisions.

The First Circuit (Barron, Lipez, Rikelman) largely affirmed a preliminary injunction ordering several agencies to resume processing grants awarded under the Inflation Reduction Act and the Infrastructure Investment and Jobs Act. The nonprofits had standing to sue, notwithstanding the government’s argument that the National Conference of Nonprofits needed to show that its members directed or controlled the organization. There is no such requirement. The agencies’ actions—the freeze directive by the Office of Management and Budget and the actual freezes by each agency—were discrete and final, and the nonprofits’ Administrative Procedure Act challenge was therefore not an improper “programmatic attack.” The agencies were also unlikely to show that those actions are committed to the agencies’ discretion by law. The nonprofits had a strong likelihood of success on the merits of their claims that the funding freeze was arbitrary and capricious, because the agencies failed to consider reliance interests before cutting off the funds. As to remedy, the terms of the district court’s injunction improperly required the agencies to make monetary payments under contracts, which the APA does not permit. The portion of the order prohibiting the agencies from relying on the challenged actions to deny funds was permissible. CASA’s prohibition on overbroad relief did not apply, because the district court relied on its remedial APA authority under 5 U.S.C. § 705 and not its general equitable authority.

The D.C. Circuit (Millett, Garcia) affirmed a preliminary injunction preventing above-ground construction of the planned White House East Wing ballroom, except to the extent such construction is necessary for safety –and security. The National Trust had associational standing because its members use the areas with views of the White House, and the new ballroom would lessen the aesthetic and recreational values of the area. The government’s argument that members of the public would not be able to see the ballroom was dismissed as “pure fiction.” Nor could the government defeat standing on the theory that plaintiffs could simply avert their eyes, that these harms could be dismissed as generalized grievances, or that standing is not present unless a plaintiff changes his or her conduct. As for the germaneness component of associational standing, the National Trust had demonstrated expertise in preservation of historic buildings and lands. The National Trust is distinct from some associations, in that it has statutorily enumerated authority. But the germaneness inquiry likely is not limited to the National Trust’s enumerated statutory authorities, and, in any event, the litigation served the purposes of those authorities too. On the merits, the Constitution gives Congress exclusive authority to regulate federal property, and neither of the statutory authorities the government cited authorized the ballroom construction. The government violated the Administrative Procedure Act by relying on 54 U.S.C. § 100101(a), because it does not authorize ballroom construction. And the government acted ultra vires by relying on the President’s authority under 3 U.S.C. § 105(d), because their theory relied on a patent misconstruction of that provision. The National Trust also would face irreparable harm from allowing continued construction, and equitable considerations also supported an injunction. Judge Rao dissented because she concluded that National Trust had failed to establish two components of associational standing—that any member would be harmed and germaneness—and because she concluded that the Trust was not likely to prevail on the statutory arguments.

The Fourth Circuit (Wilkinson, Richardson, Berner) affirmed a preliminary injunction ordering landowners to allow temporary access to their property so that an energy company could complete studies to obtain a state-law permit to build an energy transmission line (the Maryland Piedmont Reliability Project). Maryland state law required such access for purposes of the State’s permitting requirements. With respect to the other factors, the company would be irreparably harmed by a lack of access that would otherwise completely prevent the project from going forward. On the balance of the equities, the mandated access did not amount to a temporary taking without compensation. The common law has long recognized, as a condition on property rights, the right of a public utility to enter upon land for the purpose of making surveys preliminary to an eminent-domain proceeding. Any diminution in property value from this access does not constitute a taking. On the public-interest factor, the district court did not abuse its discretion in finding that a federally-approved project that addresses energy demands generally benefits the public.

The Ninth Circuit (Nguyen, Forrest, VanDyke) reversed an order denying a motion for a new trial in a citizen suit under the Clean Water Act and remanded for further proceedings on whether a creek was “water of the United States” subject to regulation under the Clean Water Act. Though the issue was not previously raised or litigated, once it became legally viable, it was raised at the earliest opportunity, and the district court retained jurisdiction to preside over a new trial. Because the panel could not determine in the first instance whether the waterbody satisfied the standard outlined in Sackett v. EPA, 598 U.S. 651 (2023), it remanded for further proceedings.

The Ninth Circuit (S.R. Thomas, Mendoza) remanded without vacatur a challenge to the Environmental Protection Agency’s approval of state implementation plan submissions for the San Joaquin Valley. The approval was premised in part on the EPA’s new view that the Clean Air Act’s contingency measure requirement is qualified by the measure’s “feasibility.” Interpreted independently following Loper Bright, the statute did not support that approach. If Congress had wanted to consider feasibility in the relevant provision, it would have said so (as it did elsewhere). Nor did the directive to design specific contingency measures implicitly grant the EPA discretion to consider feasibility. And the EPA’s interpretation undermined the contingency measures’ role in the statutory scheme and ran afoul of statutory purpose. Judge Bress dissented, reasoning that the majority elevated labels over substance, that the challenged “feasibility” analysis was shorthand for compliance with the statute and consistent with its requirements, and that the majority imposed unreasonable regulatory burdens.