The past month has seen several developments in important, and on-going environmental law cases. Each litigation, though completely unrelated, has the potential to impact agriculture. The following is an overview of the recent substantive and procedural developments in each case.
NEPA Challenge
A challenge to the regulatory overhaul of the National Environmental Policy Act (“NEPA”) was filed August 6, 2020 by a coalition of environmental groups. NEPA was originally adopted in 1970 with the purpose of ensuring that federal agencies consider the environmental impacts of their actions, inform the public of those impacts, and involve the public in developing potential alternatives. The central component of how NEPA accomplishes its goals is the reports agencies are required to prepare for any major federal action that would significantly affect the quality of the human environment. Requirements for both the procedure and content of those reports are found in the text of NEPA and its implementing regulations. Prior to 2020, the regulations had remained essentially the same since NEPA was first enacted. However, a regulatory overhaul of NEPA was proposed in January 2020, and adopted several months later. For more information on the 2020 NEPA regulations, see here.
The plaintiffs in Envtl. Justice Health All. v. Council on Envtl. Quality, No. 1:20-cv-06143 (S.D. N.Y. Aug. 6, 2020) challenge the new NEPA regulations, claiming that the regulatory overhaul would harm “people, communities, and the natural environment.” The plaintiffs raise a series of arguments. First, the plaintiffs assert that the 2020 regulations eliminate the requirement for agencies to consider the “cumulative” and “indirect” affects of their actions in violation of NEPA. The text of NEPA states that federal agencies must make a “detailed statement” that includes “the environmental impact of the proposed action” and “any adverse environmental effects which cannot be avoided.” 42 USC § 4332(2)(C)(i),(ii). The plaintiffs argue that by eliminating the requirement to consider cumulative and indirect affects, the 2020 regulations are inconsistent with the statute.
The plaintiffs raise several more arguments in their complaint, challenging nearly every point of the 2020 regulations. Currently, only the complaint has been filed, the defendants have yet to file their answer.
WOTUS Litigation
The Clean Water Act (“CWA”) is the main federal statute governing the discharge of pollutants into the nation’s waterways. The Environmental Protection Agency (“EPA”) has the responsibility of administering the Act and passing the implementing regulations. A key portion of the CWA is the term “waters of the United States,” the phrase that determines which waters fall under the jurisdiction of the Act. The term, often shortened to WOTUS, has had multiple regulatory definitions since the CWA was passed in 1972. The most recent definition is known as the Navigable Waters Protection Rule (“Navigable Waters Rule”) and was adopted in 2019. Already, the rule faces multiple court challenges in multiple jurisdictions. To read more about the Navigable Waters Rule, see here and here. For an overview of the history of WOTUS, see here.
A challenge to the Navigable Waters Rule brought by the Oregon Cattlemen’s Association was dismissed on August 7, 2020 for lack of standing. Oregon Cattlemen’s Ass’n v. U.S. Envtl. Prot. Agency, No. 3:19-cv-00564 (D. Or. April 16, 2019) was filed in April, 2019 to challenge the prior WOTUS definition which was adopted in 2015. However, after the Navigable Waters Rule went into effect, the plaintiffs amended their complaint to challenge the new regulation. The plaintiffs argued that the Navigable Waters Rule exceeded EPA’s statutory authority under the CWA. They moved for a preliminary injunction, asking the court to prevent the Navigable Waters Rule from having legal effect in Oregon while the underlying case was litigated. In a ruling on the preliminary injunction, the court decided to dismiss the case because the plaintiffs lacked standing. To have standing to file a case, a plaintiff must show that they have suffered an injury, that the injury is a result of the actions of the defendant, and that the court has the power to make the plaintiffs whole. In this case, the court believed that the plaintiffs failed to show that they suffered an injury as a result of the Navigable Waters Rule. The court dismissed the case, but allowed the plaintiffs the opportunity to refile with additional evidence that could help them establish standing.
The court ruled from the bench, meaning the judge issued the opinion in the court room immediately following the oral arguments on the request for preliminary injunction, and a written order has yet to follow. It is currently unknown whether the plaintiffs will refile their complaint.
Dicamba in the Ninth Circuit
The chemical pesticide known as dicamba is at the center of multiple lawsuits over the past few years. One of those cases was filed in the United States Court of Appeals for the Ninth Circuit, challenging EPA’s decision to reregister several dicamba-based pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). The case, Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, No. 19-70115 (9th Cir. 2020), was brought by a collection of environmental groups who claimed that EPA had violated FIFRA by registering the dicamba-based pesticides, and argued that the registrations should be vacated. The Ninth Circuit issued a decision in June, 2020. In the decision, the court found in favor of the plaintiffs, ruling that EPA had violated FIFRA, and vacating the pesticide registrations. For an in-depth review of this case, and other cases involving dicamba, see here.
Since the court issued its decision in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, there have been several developments as the defendants have made efforts to challenge the court’s ruling. The most recent of these developments is a request from the defendants for the case to be heard en banc. When a case is first brought to the Ninth Circuit, it is typically heard by a three-judge panel. Once the judges on that panel issue their opinion, a party to the case has two options. They may either appeal the decision directly to the Supreme Court of the United States, or they may petition for the case to be heard en banc, which in the Ninth Circuit means asking an eleven-judge panel to rehear the case. FRAP, Ninth Circuit Rule 35-3. Monsanto Company, and E.I. du Pont de Nemours and Company filed petitions with the court on July 20, 2020 asking for an en banc review of the court’s decision. En banc reviews are generally not favored, and will only be ordered if “(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” FRAP 35(a).
Generally, a response to a petition for en banc from the opposing party will not be considered unless the court orders a response to be filed. FRAP 35(e). At the moment, the court has not ordered that the plaintiffs respond.
Conclusion
As these cases develop, each has the potential to impact agriculture, possibly on a national level. These three cases are at different levels procedurally, and are still moving through the court systems. The National Agricultural Law Center will provide updates as each case develops.
To read the complaint in Envtl. Justice Health All. v. Council on Envtl. Quality, click here.
To read the amended complaint in Oregon Cattlemen’s Ass’n v. U.S. Envtl. Prot. Agency, click here.
To read the petitions for en banc review in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, click here and here.
For more National Agricultural Law Center information on NEPA, click here.
For more National Agricultural Law Center information on the CWA, click here.
For more National Agricultural Law Center information on pesticides, click here.