Bulletin of Developments in Environmental and Administrative Law

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.

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.

The Supreme Court of California held that a trial court must may not apply a lenient abuse-of-discretion standard when reviewing a municipality’s conclusion that the taking of a privately owned utility was in the public interest. Under California law, a public entity’s “resolution of necessity”—that is, its conclusion that a taking is necessary to serve the public interest—is ordinarily subject to deferential review for gross abuse of discretion. But when the taking is of a private utility, amendments to California’s eminent domain law dictate that a resolution of necessity creates only a “rebuttable presumption” of the taking’s necessity. Accordingly, the more lenient standard of review does not apply, and the court must instead assess necessity as a factual question subject to standard preponderance-of-the-evidence review.

The Supreme Court of Alaska held that a lower court properly dismissed an action against an intertribal consortium by one of its member Tribes. The consortium was entitled to sovereign immunity, so the state court lacked subject-matter jurisdiction as a matter of state law. The consortium provided “core government services,” such as the receipt and distribution of federal healthcare funding to its member Tribes; was organized by its member Tribes as the historic successor to a traditional governing body among Alaska Natives; and was subject to “significant tribal control.” As such, it was functionally an arm of the federally recognized Tribes that comprised its membership, and it was therefore entitled to sovereign immunity. No recognized exception to sovereign immunity applied.

The Supreme Court of Ohio held that the State’s regressive-rate tax structure for financial institutions, which decreases a bank’s tax burden based on how much in-state business it conducts, did not violate the dormant Commerce Clause. The tax comported with the internal consistency test, which asks whether uniform adoption of a given tax by every state would disadvantage interstate commerce or result in double taxation. The tax would not discriminate against interstate commerce, because a bank’s tax burden would be a function of its business activity in a given state, not its status as an in- or out-of-state bank. And the tax would not trigger double taxation, because each state would only tax the share of a bank’s equity capital attributable to the bank’s activity in that state.

The U.S. District Court for the District of Alaska (Gleason) granted the federal defendants’ motion to dismiss a challenge to President Trump’s reversal of a prior presidential withdrawal, under Section 12(a) of the Outer Continental Shelf Lands Act, of portions of the Outer Continental Shelf in the Arctic, Pacific, and Atlantic Oceans, and the Gulf of Mexico from oil and gas leasing. As to areas that were not still covered by any prior presidential withdrawal, the plaintiffs’ allegations did not sufficiently identify an imminent injury by pointing to actual activities, or actually proposed activities, that would harm them, requiring the court to speculate about whether any of the previously withdrawn areas would be included in a new oil and gas leasing program or future lease sales.

The U.S. District Court for the District of Arizona (Martinez) partially granted environmental groups’ motion for summary judgment in a challenge to a 2021 U.S. Fish and Wildlife Service Biological Opinion relevant to a grazing program in the Coronado National Forest. As to the Sonora chub, the incidental take statement uses the surrogate “measurable effects to habitat” to measure take. But the causal link between those effects and take is too vague to perform the functions of a numerical limitation that could “trigger” an unacceptable level of incidental take. As to the Chiricahua leopard frog, the incidental take statement uses its habitat’s primary constituent elements to measure if, and when, take has been exceeded, and requires that effects on those elements be “directly attributable to livestock grazing or livestock management.” That requirement does not provide a clear statement for how the agency will measure or report take.

The U.S. District Court for the District of Columbia (Leon) denied a preliminary injunction that would stop construction of a wall over most of a 62-mile stretch of the international border with Mexico. The plaintiff, the Tohono O’odham Nation, challenged the construction as ultra vires on the grounds that it would diminish the Nation’s reservation boundaries without the authority of Congress and in violation of 25 U.S.C. § 398d. That claim failed because, among other things, the high standard for ultra vires claims was not met in light of conflicting historical evidence about the scope of a prior federal reservation of land adjacent to the border. The Nation was also unlikely to succeed on the merits of its trespass claim because it was unlikely that sovereign immunity was waived as to that claim.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.