Bulletin of Developments in Environmental and Administrative Law

The Washington Superior Court set a trial date of February 7, 2028, in this case alleging that fossil fuel companies engaged in a decades-long misinformation campaign about the dangers of fossil fuels.

The Supreme Court of Montana held that an environmental organization could not bring a constitutional challenge to a permit issued by the state Department of Environmental Quality without first exhausting the constitutional claim before the agency. While the exhaustion requirement would not apply to a facial constitutional challenge to an entire administrative scheme, the organization did not bring such a challenge. Instead, the organization challenged the constitutionality of Department action “specific to the challenged permit.” So, the exhaustion requirement applied.

The en banc Pennsylvania Commonwealth Court heard oral argument in this case presenting the question whether the trial court correctly dismissed the county’s complaint—which alleged that fossil fuel producers concealed the dangers of fossil fuel consumption—on preemption grounds.

The U.S. District Court for the Northern District of Mississippi (Brown) granted the United States intervention in a citizen suit brought under the Clean Air Act but denied the United States’ motion to dismiss the suit. The Clean Air Act grants the Environmental Protection Agency Administrator the right to intervene. The United States invoked Rule 41 as supporting its motion to dismiss, but that rule does not allow a party to involuntarily dismiss a plaintiff’s claims. The United States also read a dismissal right into Section 7604 of the Clean Air Act, but the Act cannot be read to contain a dismissal right and the constitutional avoidance canon did not overcome that text.

The U.S. District Court for the Northern District of California (Chhabria) preliminarily enjoined the Department of Agriculture from spending appropriated funds on certain challenged office closures and employee relocations. The USDA had taken final agency action by notifying Congress of decisions it intended to take, and had affecting employee rights and obligations by giving them deadlines by which to report to new offices or be fired. As to the merits, various provisions barred the USDA’s reorganization actions. While provisions also contained “escape hatch” provisions that permitted the House and Senate Appropriations Committees to allow the challenged closures and relocations, those provisions were unconstitutional under INS v. Chadha, 462 U.S. 919 (1983), and severable, leaving only the restrictions on reorganization in place. The equitable factors supported preliminary relief, and preliminary relief under 5 U.S.C. § 705 can be as broad as the ultimate relief authorized under 5 U.S.C. § 706.

The U.S. District Court for the Western District of Texas (Cardone) issued an opinion explaining its earlier order enjoining the federal government from constructing a border wall in the Big Bend border sector unless it complies with applicable environmental (and other) laws. The jurisdictional requirement—in 8 U.S.C. § 1103, note, § 102(c)(2)(A) (2009)—restricted causes of action to those brought under the Constitution, and plaintiffs’ claim met that provision because they invoked the major questions doctrine, which the court viewed as “a substantive rule of constitutional magnitude.” On the merits, the government relied on—8 U.S.C. § 1103 note, § 102(c)(1)—authorized waivers of other laws in certain “areas of high illegal entry,” and the court found that the term did not apply to this sector. The equitable factors supported preliminary relief.

The Ninth Circuit denied the United States’s petition for rehearing en banc of an unpublished decision reversing a preliminary injunction for application of the incorrect preliminary injunction standard (the standard for mandatory rather than prohibitory injunctions) and remanding for application of the proper standard, including the circuit’s alternative sliding-scale test for preliminary injunctions. Judge Bress, joined by nine colleagues, dissented from denial, reasoning that the alternative test was inconsistent with Supreme Court precedent, gave district courts too much latitude, and should be revisited. Judge VanDyke, in a separate dissent, urged reconsideration of the circuit’s view that intervening Supreme Court decisions disturb prior precedent only when they are clearly irreconcilable.

The D.C. Circuit (Wilkins, Pan) reversed the denial of a preliminary injunction relating to the Department of Homeland Security’s shift in policy away from refraining from conducting immigration enforcement operations at houses of worship. After emphasizing that it need only find standing on a single theory for a single plaintiff for each form of relief sought, the court found that plaintiffs likely had associational standing based on imminent harm that would be redressed by an injunction requiring a reversion to the prior policy and an order prohibiting enforcement operations in houses of worship absent a warrant or exigent circumstances. Plaintiffs’ members faced an imminent threat of harm because they faced a credible threat of enforcement. Reversion would make enforcement in house of worship less likely, as would imposition of a judicial warrant requirement. Judge Rao dissented, because it was speculative whether reversion would constrain enforcement practices.

The Third Circuit (Bibas, Montgomery-Reeves) affirmed the denial of a preliminary injunction of a township’s denial of a church’s rezoning application. The panel focused its analysis not on the merits but on whether preliminary injunctive relief was necessary to preserve the status quo: While the plaintiffs were likely to succeed on their Religious Land Use and Institutionalized Persons Act claim, a preliminary injunction was not appropriate because it was unnecessary to preserve the status quo and no interim relief was necessary to prevent irreparable harm. Judge Matey dissented because he viewed disrupting the status quo to be appropriate when the status quo involved religious discrimination.

The Tenth Circuit (Tymkovich, Bacharach) dismissed a Tribe’s petition for review of the Environmental Protection Agency’s decision to approve Oklahoma’s request to administer twenty-six federal environmental programs in Indian country. EPA’s approval decision was not ultra vires because—contrary to the Tribe’s argument—the provision of federal law authorizing states to assume such programs did not expire. EPA’s interpretation to that effect warranted Skidmore respect. And EPA did not contravene the provision’s terms in concluding that it had no authority to impose conditions on its approval, or in relying on prior determinations that Oklahoma’s various programs fulfilled the requirements of relevant environmental statutes. Judge Federico dissented on the basis that the Indian canons of construction required interpreting the provision to allow EPA to impose tribe-protective conditions on approval.

he Sixth Circuit (McKeague, Thapar, Murphy) stayed pending appeal a district court decision vacating, under the National Environmental Policy Act, the Tennessee Valley Authority’s decision authorizing the construction of a gas-fired plant. The district court found that the TVA violated NEPA by not considering at least two alternatives and that these were more than technical errors that supported vacatur. Because that order functionally required the TVA to halt construction, the factors that govern stay of an injunction applied. As to likelihood of success on the merits, it was unclear why the environmental challengers had standing, but that issue could be bypassed because TVA was likely to prevail: The district court likely misread the phrase “range of alternatives” and misconstrued permissible planning as precommitment (which NEPA prohibits). The district court also wrongly ordered vacatur: The Administrative Procedure Act likely permits remand without vacatur for NEPA violations, and the errors the district court found were not serious because nothing suggested that TVA would disapprove the plant after more process and vacatur would impose high costs on TVA and the public.

The Eleventh Circuit (Newsom, Luck, Tjoflat) vacated a preliminary injunction against a Georgia law regulating social media for minors. As relevant here, the plaintiff internet trade association has associational standing. The First Amendment claims do not require the participation of individual members (social-media platforms), even though those platforms provide diverse content and are of different sizes The law’s various requirements, like age-verification measures, apply to all of them. And while some platforms might have different as-applied merits arguments (for instance, platforms that host pornography vs. those that do not), that does not defeat associational standing, which is a “gateway” issue. On the merits, the Georgia law’s prohibition on certain advertising to minors is not preempted by Section 230 of the Communications Decency Act, which prohibits treating a social-media platform as “the publisher or speaker of any information provided by another information content provider.” The Georgia law regulates how the platforms themselves act, not how they treat others’ information.

The Fifth Circuit (Elrod, Clement, Oldham) granted a petition for review challenging the quarterly contribution factor the Federal Communication Commission had set to collect funds from telecommunications companies to subsidize communications services for underserved communities. At least one petitioner had standing because it was required to contribute directly, and the dispute was not moot—notwithstanding that the petitioner had already paid—under the capable of repetition, yet evading review exception. On the merits, the FCC exceeded its statutory authority when it relied on a private corporation, the Universal Service Administrative Company, to set the contribution level, because USAC acts as an agency to administer an FCC program and Congress did not authorize the FCC to establish USAC. The court acknowledged that courts’ “set aside” power has come under scrutiny, but nonetheless vacated the contribution factor.

The Fourth Circuit (Diaz, Rushing) reversed the dismissal of two Virginia school districts’ suit against the Department of Education challenging the Department’s enforcement action affecting the districts’ funding. Based on purported Title IX violations, the Department had deemed the districts “high risk” for federal grants and conditioned their future funding on a “reimbursement” method of payment. The Tucker Act did not bar the suit, which was based on Title IX—not any grants—and did not seek to vindicate a contractual right. And the fact that the dispute implicated payment conditions on federal funds did not mean that all forms of relief a court could appropriately order were contractual. Judge Richardson dissented because the gravamen of the districts’ claims is a “demand for prepayment under grant contracts” that the Tucker Act bars.

The Third Circuit (Krause, Phipps, Chung) rejected a petition for review challenging a noncitizen’s order of removal. Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), did not require that the court disregard its prior precedent deferring to the Board of Immigration Appeals’ interpretation of the phrase “sexual abuse of a minor” in the Immigration and Nationality Act. While Loper Bright prohibited courts from deferring to agencies’ interpretations of ambiguous statutes going forward, it did not prohibit courts from relying on existing precedent which applied that deference.

The Ninth Circuit (R.D. Nelson, Forrest, Sung) reversed a summary judgment in favor of a conservation organization in its challenge to a vegetation-management project in the Idaho Panhandle National Forest. An earlier decision concerning a different alleged error with the same project (see Issue 26.15) did not render the appeal moot because the order on review here independently foreclosed the Forest Service’s proposed course of action. The project was consistent with the road construction restrictions imposed by amendments to the National Forest Management Act because the difference between post-project road mileage and the applicable baseline was not caused or contributed to by the project. The Forest Service’s failure to remediate background noncompliance was consistent with the amendments’ temporary road provisions because those provisions governed only the temporary roads a project uses. And the conservation organization’s challenge to the Forest Service’s road-closure practices failed absent a factual finding to the contrary.

The Ninth Circuit (Hawkins, Fletcher, Tung) reversed a judgment dismissing for lack of standing an action alleging that a health insurance administrator disclosed confidential health information without authorization. The harm of unauthorized disclosure of sensitive health information entrusted to the defendant was akin to an injury courts have traditionally recognized: breach of confidence or contract. To the extent the Third Circuit had reached a contrary conclusion, it was mistaken.

The First Circuit (Montecalvo, Lipez, Kayatta) affirmed the dismissal of a failure-to-warn suit against a pharmaceutical manufacturer but remanded for the plaintiff to amend her complaint. The plaintiff’s theory of liability was preempted by the Federal Food, Drug, and Cosmetic Act based on impossibility preemption. The FDCA requires Food and Drug Administration approval of biologic-product labels; the fact that Amgen could have requested a change to its label doesn’t defeat preemption, because FDA would have had to approve it. Moreover, the record here establishes that FDA would have rejected the change in question. However, an alternative theory of liability that the plaintiff presented—that, based on newly acquired information, Amgen should have used a statutory procedure to supplement its label post-approval—was not clearly preempted and thus not futile, and the district court should have granted leave to amend.

The First Circuit (Gelpí, Rikelman, Aframe) ordered the dismissal of Maine lobster-industry plaintiffs’ defamation suit against the Monterey Bay Aquarium Foundation based on the aquarium’s Seafood Watch statements, which recommended that consumers avoid eating American lobster because lobster traps pose a risk to the North Atlantic right whale. Defamation of a whole group cannot satisfy the tort requirement that the defamatory statement be “of and concerning” the plaintiff, and no exception to that rule applies here. A contrary understanding could raise First Amendment concerns where, as here, the speech implicates issues of public concern.

The Fifth Circuit (Jones, Duncan, Douglas) affirmed a decision dismissing a challenge to two Department of Energy rules issued under the Energy Policy and Conservation Act that provided water-use standards for dishwashers and clothes washers. The plaintiffs had standing based on a lost opportunity to purchase appliances that the regulations barred. But the district court lacked subject matter jurisdiction because EPCA implicitly stripped that jurisdiction, and the non-statutory ultra vires theory failed because plaintiffs failed to identify a clear statutory prohibition that DOE had defied.