PRotectingThe environment is the right thing for people and the earth, and it’s also the law. Environmental laws regulate the protection of the environment, including water quality, waste management, chemical safety, hunting and fishing, and pollution. Each year, legal cases are filed that alter the political and physical environment.
Richard M. Frank, Professor at the UC Davis School of Law, highlighted the 9th Circuit’s Top 10 Environmental Law Decisions of 2021 via a blog post. facultyblog.law.ucdavis.edu.
Frank is a professor in environmental practice and director at the California Environmental Law & Policy Center. Frank was previously the executive director of the Center for Law, Energy & the Environment at UC Berkeley School of Law. He returned to UC Davis School of Law on January 2010.
You can read the rest of his piece, which has been lightly edited.
In 2021, the 9th U.S. Circuit Court of Appeals The federal circuit appeals court for California and Arizona, as well as Alaska, remained the most important court in the United States in environmental law, with the U.S Supreme Court being the only exception. The 9th Circuit was also able to continue its position as the most important source of key environmental decision-making by any federal appellate court, issuing nearly one per day.
Here’s my chronological list, with apologies for any omissions, of the 9th Circuit’s most important environmental law decisions in 2021:
Juliana v. United States, (Jan. 17, 2020)
Juliana was undoubtedly the most closely followed 9th Circuit environmental case of 2021. It involved a lawsuit filed against the federal government in 2021 by a group a children and their guardian ad-litem (renown climate scientist James Hansen).
They claimed that the government’s failure take concrete steps to reduce U.S. emissions of greenhouse gasses violates its public trust-related obligations to future generation as well as the plaintiffs substantive due process rights.
A three-judge panel split ruled that the young plaintiffs didn’t have standing to bring the case, inverting the decision of the district court. The third panel member wrote passionately a dissent, arguing for the children’s constitutional standing and their substantive claims. The majority and dissenting views both agreed that climate change is real, and poses a grave threat to the planet.
Their disagreements over the proper role of the judiciary in addressing climate change make for compelling reading. The… JulianaAlthough case is now closed, its legacy will be preserved: Related Juliana-type lawsuits are still pending in courts throughout the country.
United States v. Walker River Irrigation District, (Jan. 28).
This is the latest chapter in a long-running federal court case over the Walker Riveran intrastate river that flows east to central Nevada and eventually into Walker Lake.
Nevada local governments, Native American tribes, and environmental groups claimed that uncontrolled water diversion from Walker River is destroying Walker Lake’s ecosystem and environmental values. This case closely mirrored the 1983 National Audubon Society public-trust decision by the California Supreme Court. They claimed that the diversions violated the public trust doctrine.
Initialy, the 9th Circuit referred the dispute the Nevada Supreme Court to determine if the public trust doctrine can be used to limit water diversions that were previously allowed in the state. Many observers thought the case was over after the Nevada court answered that question in negative and returned it to the 9th Circuit. They were wrong.
In a partial victory to the public trust plaintiffs the Court of Appeals remanded it to the federal district court with instructions to permit the plaintiffs to pursue the public trust claims with certain conditions.
City & County of Honolulu v. Sunoco LP, (March 13)
This case is one among many climate change lawsuits pending in the United States. These lawsuits were originally filed in state court and advance state common laws theories against the fossil fuel sector.
They seek money damages to recover the governments’ climate change-related costs resulting from greenhouse gas emissions from defendants’ fossil fuel products.
The HonoluluA 9th Circuit panel denied defendants’ motion to block the federal court’s remand of litigation back to state after it was removed to federal court by the defendants. The Court of Appeals ruled in favor of the industry, finding that they had not shown irreparable harm if forced by federal and state courts to litigate the case simultaneously.
Regan v. League of United Latin American Citizens, (April 29)
This is both a public health and environmental justice decision. It is important and requires action.
It’s the culmination a long-running struggle by environmental groups and civil rights groups to have the U.S. Environmental Protection Agency regulate chlorpyrifos in accordance with federal environmental laws. Those efforts finally paid off.
The 9th Circuit ruled against the EPA for violating multiple federal environmental statutes. It had long-standingly evaded its statutory duty of determining whether current tolerances to chlorpyrifos were safe. The Court of Appeals decided that the EPA should publish a finding or ban the pesticide within 60 calendar days of its decision. The EPA chose to do so last summer.
Hardeman v. Monsanto Corp., (May 14).
The 9th Circuit upheld a district judge’s decision that Monsanto Roundup caused plaintiff’s cancer. The Court of Appeals’ decision emphasized that the plaintiffs failure-to warn product liability claims were not preempted expressly or impliedly by the Federal Insecticide, Fungicide and Rodenticide Act.
Ross v. National Pork Producers Council, (July 28).
A subcategory of 9th Circuit Environmental Jurisprudence is the invocation by the regulated community of various constitutional doctrines to restrict or block the application of environmental and related regulatory programmes.
In National Pork Producers CouncilAn out-of-state trade organization challenged the constitutionality a California ballot initiative that prohibited the sale of pork products from this state from improperly or inhumanely confined animals. The trade group argued that the enforcement of this requirement against pork producers from out-of-state violates dormant Commerce clause principles, unduly burdening interstate business.
The 9th Circuit rejected the claim, declaring that the California initiative was constitutional and enforceable against outside-state companies. (The 9th Circuit has rejected numerous dormant commerce clause-based challenges against numerous California animal welfare and environmental laws in recent years.
Sackett v. Environmental Protection Agency, (Aug. 16).
This case may sound familiar: Sackett is a long-running wetlands dispute involving the federal government and an Idaho couple who want to develop their property.
The feds claim that a portion Sacketts’ property is wetlands under Clean Water Act. They also argue that the Sacketts had to apply for and obtain a permit prior to developing their property. The 9th Circuit had previously upheld the government’s procedural argument, but the U.S. Supreme Court reversed that decision in 2012.
This year, the 9th Circuit ruled on remand that the government’s administrative proceedings correctly determined that Sacketts property contained wetlands. Sacketts appear to be able to return the Supreme Court in 2022.
Southwest Fair Housing Council against Maricopa Domestic Water District, (Aug. 23).
This “water justice” case involved an NGO challenging the Arizona water district’s policy that requires residents of public housing to pay deposits at least three times higher than those who live in non-public housing.
Plaintiff claimed that the policy was discriminatory and violated the federal Fair Housing Act. Surprisingly, the 9th Circuit rejected this argument. It concluded that the district policy served legitimate business interests, and that there were no comparable effective, but less discriminatory alternatives.
Association of Irritated Residents v. Environmental Protection Agency, (Aug.26)
This citizen suit was filed under the federal Clean Air Act to challenge the Trump administration EPA’s conditional acceptance of a California plan that would reduce ozone levels at the San Joaquin Valley. The San Joaquin Valley has some of America’s poorest air quality.
The Court of Appeals ruled that the EPA’s approval of California’s plan was arbitrary and capricious. It found that the plan would only result in minor ozone emissions reductions. The 9th Circuit also ruled that the CAA does NOT prohibit California’s Enhanced Enforcement Activities Program. This program, according to the Court of Appeals, would significantly improve California’s ozone mitigation plan.
Federal Aviation Administration v. Center for Community Action, (Nov. 18)
This case under the National Environmental Policy Act, which concerns the FAA’s environmental assessment of an Amazon distribution centre located near San Bernardino Airport, seems unremarkable. A 9th Circuit panel split rejected the NEPA challenge by an environmental group to the project and deemed the FAA’s environmental assessment legally adequate.
The most striking thing about the decision is the heated exchange between Judge Johnnie Rawlinson’s dissent and the majority. Judge Rawlinson argued in her dissent that the case “reeked” of environmental racism, inasmuch the proposed area is, according the EPA, an “extremely” non-attainment zone for multiple air pollutants, and populated primarily with people of color.
Judge Rawlinson rhetorically questions: “Does anyone doubt the Environmental Analysis would not see daylight if this project was located anywhere near the wealthy enclave where multi-billionaire Amazon owner resides?”
It is not surprising that the majority of the panel judges took offense to the dissenters’ pointed criticism. A concurring opinion attempted, however, to counter the dissenters’ “environmental racism” claims.
To my knowledge, this is only the first instance of the term “environmental racist” being used in a federal appellate decision. Its invocation certainly generated judicial sparks, and robust debate.
The dueling Center for Community ActionThe opinions serve as a fitting and end-of year bookend to the similar passionate and conflicting views expressed in the 9th Circuit’s. JulianaCase earlier this year.
Richard M. Frank
