LITIGATION:

Court to weigh private interests' intervention in NEPA disputes

A federal appeals court will consider next week whether to abandon a legal rule that makes it difficult for private interests to intervene in environmental disputes in the Western states.

Industry and recreational groups are pushing hard for the change, while environmentalists are largely staying silent.

At issue is the San Francisco-based 9th U.S. Circuit Court of Appeals' "federal defendant rule," which prevents anyone other than the federal government from defending claims under the National Environmental Policy Act (NEPA), the main legal mechanism for challenging government actions that affect the environment.

The argument in Wilderness Society v. U.S. Forest Service in Pasadena on Monday will be before an en banc panel of 11 judges, rather than the usual three-judge panel, because the court is considering whether to overturn one of its precedents.

The rule, unique to the 9th Circuit, irks business and recreational interests in particular. They feel their voices are not always heard when environmental groups file suit.

Some federal district courts within the 9th Circuit's jurisdiction have even started to apply it to cases outside of the NEPA context, including Endangered Species Act cases.

Industry groups, like the U.S. Chamber of Commerce, see the rule as a growing threat.

If the court were to abandon the rule, "it would be devastating to the environmental groups," said Robin Conrad, who heads the group's legal arm. "It's an effort to shut out an opposing point of view."

The chamber has filed a friend-of-the-court brief that has been joined by the American Petroleum Institute, the National Association of Manufacturers and other industry groups, calling for the rule to be axed.

Intriguingly, environmental groups appear somewhat conflicted about the matter. They have stayed neutral on the question of whether the rule should be kept and have downplayed the importance of the case.

Legal observers say that is because while the rule might help them in some cases, in others, it does not.

As a whole, the rule is "disturbing and misplaced," said Richard Frank, director of the California Environmental Law and Policy Center at the University of California, Davis.

The rule effectively stops interested parties from making perfectly valid arguments that could help the court reach better decisions, he added.

What the court decides to do following the arguments Monday is of consequence because the 9th Circuit's jurisdiction includes the nine Western states, and its caseload therefore includes a substantial number of environmental cases in which the federal government is the defendant.

"This is a very important issue, because industry groups are often concerned that the government will not adequately defend the actions it took to comply with NEPA," said Arthur Hellman, a law professor at the University of Pittsburgh School of Law.

Elizabeth Howard, a partner at Dunn Carney Allen Higgins & Tongue in Portland, Ore., who represents ranchers and farmers who use public lands and has filed a brief in the case, noted that her clients suffer when they cannot intervene.

"A lot of environmental groups are trying to effectuate change through the legal system, so they spend of lot of time and energy filing lawsuits," she said. "Right now, we are being precluded from intervening."

Recreation groups at forefront

Although the business community has weighed in, the lead on the issue is actually being taken by recreational groups, including the Magic Valley Trail Machine Association, which wanted to intervene when the Wilderness Society and Prairie Falcon Audubon Inc. sought to challenge a U.S. Forest Service decision concerning motorized travel in the Sawtooth National Forest in Idaho.

The environmental groups argue that the Forest Service wanted to allow too much access for motorized vehicles, and asked the courts to restrict that access.

Their opponents had the opposite view: that the Forest Service had already restricted access too much. But U.S. District Judge Edward Lodge of the District of Idaho ruled that the recreational groups could not intervene.

A three-judge panel heard arguments on the issue but did not issue a ruling. Instead, the judges asked for the court to hear the case en banc so that the future of the federal defendant rule could be dealt with.

Law professor Hellman said the rule is of particular importance when actions taken by a prior administration are being challenged when another administration is in power. Now for example, George W. Bush-era decisions are being defended by the Obama administration.

"Private groups that support the earlier administration's approach may fear that the new officials will throw in the towel," Hellman said.

Although it is business and recreational interests that are currently concerned about the rule, in the future, environmental groups could find themselves in the same position when a Republican administration is tasked with defending Obama administration decisions, Hellman added.

The environmental plaintiffs do not want to get into that debate, admitted Megan Anderson O'Reilly, a lawyer at the Western Environmental Law Center who is arguing the case for the plaintiffs.

She agreed that the rule "cuts both ways," indicating that was the main reason environmental groups have not advocated a particular position on the rule.

As for the federal government, it filed a brief saying the case "does not properly present the issue," in part because the recreational groups only want to intervene concerning the possible remedy that the plaintiffs are seeking.

Under 9th Circuit precedent, "that type of participation has been allowed by this court even with the federal defendant rule in place," the government's brief states.

The mere fact that the appeals court has decided to hear the case en banc is significant, according to the University of California, Davis' Frank.

"It may signal that the court as a whole is willing to revisit the rule," he said. "I, for one, think that is most welcome."

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