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Decades-Old Rule in Environmental Law Overturned

Daily Journal
02/01/11

In a decision issued Jan. 14, in Wilderness Society v. U.S. Forest Service, an en banc panel of the 9th U.S. Circuit Court of Appeals overturned a rule it instituted more than two decades ago precluding non-federal parties from intervening as of right in National Environmental Policy Act (NEPA) cases. The decision has substantial implications for parties that may have an interest in intervening in NEPA cases to defend the conduct and decisions of the federal government.

The case arose from a decision by the U.S. Forest Service to designate certain roads and trails for use by motorized vehicles in the Sawtooth National Forest. Two conservation groups challenged the decision alleging the Forest Service failed to comply with NEPA. Recreation groups sought to intervene but the district court applied the 9th Circuit's "federal defendant rule" and denied intervention. The recreation groups appealed and urged the 9th Circuit to modify or eliminate the federal defendant rule.

Federal Rule of Civil Procedure 24 allows any party to seek to intervene in an ongoing civil action. A party can seek to intervene as of right provided its motion to intervene is timely, it claims an interest relating to the property or transaction that is the subject of the action, disposing of the action may as a practical matter impair or impede its ability to protect its interest, and no existing parties adequately represent that interest. In its prior precedent, the 9th Circuit held that this rule does not provide a basis for would-be intervenors to defend the merits of a federal agency action under NEPA because NEPA is a procedural statute that binds only the federal government. The rationale for this precedent is that only the federal government has a sufficient interest in defending its actions in complying with NEPA's procedural requirement.

Without dissent, the 9th Circuit overruled its prior precedent concluding that the so-called federal defendant rule is inconsistent with the text of Rule 24 and that the application of the federal defendant rule in NEPA cases runs counter to the standards it applies in all other cases. At the same time it abandoned this rule, the 9th Circuit clarified that it would apply the body of precedent it developed respecting intervention as of right in non-NEPA cases to NEPA cases going forward. The Court stated:

"To determine whether putative intervenors demonstrate the 'significantly protectable' interest necessary for intervention of right in a NEPA case, the operative inquiry should be whether the 'interest is protectable under some law' and whether 'there is a relationship between the legally protected interest and the claims at issue.'"

The 9th Circuit's ruling will allow parties with a cognizable interest in an agency decision under NEPA, such as an environmental impact statement and record of decision, to seek to intervene in both the merits and remedy stages of a lawsuit challenging that decision. Public and private parties alike that undertake projects that trigger the NEPA process (e.g., due to the need for a federal permit or the use of federal funding), such as construction of a new highway interchange or development of a piece of commercial real estate, now have the capability to defend such projects during NEPA litigation whereas before they were relegated to the sidelines. This change in controlling precedent reflects a shift from a policy preference in favor of giving the federal government substantial control over litigation in which it is a party toward a policy based on the recognition that other parties may have a legal interest in final actions taken by a federal agency, such as the issuance of a record of decision pursuant to NEPA.

For parties with a strong interest in NEPA decisions associated with high profile projects, -- for example, the Clinton administration's promulgation of the "roadless rule" or the Bush administration's decision to allow Mexican trucks to operate in the United States under NAFTA -- the change in precedent is especially important. This is the case because political support for such decisions may change as presidential administrations change so the willingness of the executive branch to vigorously defend high profile decisions cannot be presumed. In such circumstances, the ability of parties who support such actions and can meet the requirements of Rule 24 to defend them, even when the federal government fails to do so, is now recognized by the 9th Circuit.

Paul Weiland is the chair of Nossaman's Environment and Land Use Practice Group. He counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes. He can be reached at (949) 833-7800 or pweiland@nossaman.com

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