[Jonathan Adler, July 2, 2008 at 5:37pm] Trackbacks
Ninth Circuit Overrules Ecology Center:

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):

  1. How Significant Is Lands Council Decision?
  2. Lands Council v. McNair:
  3. Ninth Circuit Overrules Ecology Center:
George Weiss (mail) (www):
wouldn't a unanimous en banc panel include the judges who originally voted the other way in the exact same case??
7.2.2008 6:41pm
Alex Blackwell (mail):
In the Ninth Circuit en banc review is held by a randomly-selected 15-judge panel, which may not include the original panel.
7.2.2008 6:55pm
Alex Blackwell (mail):
Oops. Change "may" to "might."
7.2.2008 6:55pm
David M. Nieporent (www):
In recent years, the Ninth Circuit has been something of an outlier in environmental law,
FIFY.
7.2.2008 7:24pm
George Weiss (mail) (www):
alex blackwell

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.
7.2.2008 7:42pm
Alex Blackwell (mail):
George Weiss,

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.
7.2.2008 8:03pm
George Weiss (mail) (www):
cool. thanks again
7.2.2008 8:06pm
Alex Blackwell (mail):
As one might expect with anything related to the Ninth Circuit, there has been criticism of its en banc procedure. For example, see Judge Richard A. Posner's comments in an interview (scroll down to Question 9) by Howard Bashman nearly five years ago. See also Pozner's earlier article "Is the Ninth Circuit Too Large? A Statistical Study of Judicial Quality."
7.2.2008 8:15pm
Dave N (mail):
Three quick points.

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.
7.3.2008 1:07am
Alex Blackwell (mail):
Thanks for the added information, Dave N.

En banc procedures in the Ninth Circuit (aka The 11-ring Ninth Circus) resemble a floating crap game.

Okay, enough with the mixed metaphors :-)
7.3.2008 12:11pm
coyote (mail):
Hmmm. The issues for which Ecology Ctr. v. Austin was overruled were not in environmental law, they were in public lands law (the National Forest Management Act, specifically). This case breaks no new NEPA ground--the NEPA claim by plaintiffs was fairly weak. As to public lands law, it's kind of silly to call the Ninth Circuit an outlier when only that circuit, and to a lesser degree the Tenth, make any significant law in the field.
7.4.2008 5:10pm