Now and then the Ninth U.S. Circuit Court of Appeals it right. In a Jan. 14 decision in Wilderness Society v. U.S. Forest Service, the court abandoned its “federal defendant” rule, which often prevented interested parties from having a voice when environmental groups filed suit against the federal government.
As described by Judge Barry Silverman in the opinion (available here):
Today we revisit our so-called “federal defendant” rule, which categorically prohibits private parties and state and local governments from intervening of right on the merits of claims brought under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 rule is at odds with the text of Federal Rule of Civil Procedure 24(a)(2) and the standards we apply in all other intervention of right cases, we abandon it here.
The National Association of Manufacturers joined other business groups in filing an amicus brief (available here) supporting the intervenors in the case, The Magic Valley Trail Machine Association, Idaho Recreation Council, and the BlueRibbon Coalition, Inc. As the NAM Manufacturing Law Center summary reported, private parties often have a substantial interest (including major investments) in defending agency actions under NEPA.
We cited many examples where private parties have such interests, including development projects that involve work in wetlands, the construction of natural gas pipelines or nuclear power plants, and the development of genetically engineered crops.
Our concern is not just about the application of the federal defendant rule to projects subject to NEPA, but also to the fact that it has been extended to other statutes, including the Endangered Species Act, the National Forest Management Act, and the Plant Protection Act. Intervention should be allowed to parties with significant interests in the outcome of such litigation.
Or, as Western Institute for Study of the Environment put it in its SOS Forests blog:
The upshot [of the ruling] is that states, counties, and other affected groups and individuals may now intervene when an enviro-litigious group attempts to use the courts and NEPA law to inflict their own twisted policies on federal agencies.
Before this ruling states, counties, and others had to sit on the sidelines while high-paid enviro attorneys argued with US Dept. of Justice attorneys. Very often, terrible rulings were issued that significantly harmed people and entities who were categorically excluded from the courthouse.
“No day in court for you,” said the Ninth Court. But now that (court invented) exclusion from justice has been lifted.
Thank you, Ninth Circuit Court, for lifting ever so slightly your boot heel off the necks of Americans.
Also on the NAM amicus brief were the American Petroleum Institute, U.S. Chamber of Commerce, Croplife America, and the National Petrochemical Refiners Association.
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