A unanimous en banc panel of the U.S. Court of Appeals for the Ninth Circuit overturned the Circuit's 2005 ruling in Ecology Center v. Austin today, and appears to have narrowed the court's review of federal agency NEPA compliance. After briefly skimming the court's opinion in Lands Council v. McNair, I think it could be quite significant. In recent years, the Ninth Circuit has been something of an outlier in environmental law, and the most desirable jurisdiction for environmentalist plaintiffs. Insofar as this decision indicates a desire by Ninth Circuit judges to tame the court's environmental jurisprudence, it could be a biggie. I hope to say more, but I'm in an airport on my way to Glasgow for a wedding, so I don't know when I'll get a chance.
Related Posts (on one page):
- How Significant Is Lands Council Decision?
- Lands Council v. McNair:
- Ninth Circuit Overrules Ecology Center:
thanks that was helpful.
indeed the only judge who was both on the panel and on the en banc court in this case was MARGARET MCKEOWN, and she was indeed a dissenting opinion in the original panel decision.
I'll just add that in the Ninth Circuit, the Chief Judge is always assigned to en banc panels, so the situation is really fourteen randomly-selected judges with the CJ always in the mix.
Since CJ Kozinksi only assumed that position late last year, it wasn't a factor in this case.
While the 9th Circuit experimented with 15 judge en banc panels, starting this year the en banc panels now have only 11 judges.
The Chief Judge always is a member of the en banc court.
The other ten members are chosen at random among the active members of the court. However, if a judge was not chosen in the draw for the prior two en banc panels, he or she is automatically slotted for the next en banc panel.
As a side note, an 11-0 vote to overturn a 2-1 decision is quite the rebuke for the original panel.
En banc procedures in the Ninth Circuit (aka The 11-ring Ninth Circus) resemble a floating crap game.
Okay, enough with the mixed metaphors :-)
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