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.

Lands Council v. McNair:

I've finally had the chance to read through the U.S. Court of Appeals for the Ninth Circuit's en banc opinion in Lands Council v. McNair. I think it could be quite a significant environmental case, even beyond the federal land management issues it directly addresses.

Of initial note is the court's simple disposition: an 11-0 en banc reversal of a divided three judge panel. While the composition of en banc panels on the Ninth Circuit is randomly determined, it is still striking that not one of the eleven judges sided with the original panel. In the original panel opinion, Judge Ferguson wrote the majority, joined by Judge Reinhardt. Judge Milan Smith dissented, prompting a responsive concurrence from Judge Ferguson. Now it appears Judge Smith has had the lat word as the author of the en banc opinion. In this opinion he was joined by Chief Judge Kozinski and Judges Rymer, Kleinfeld, Hawkins, Silverman, McKeown, Fisher, Berzon, Clifton and N. Randy Smith.

The case grew out of a challenge to the selective logging of some 3,800 forest acres in Idaho as part of a larger project to help improve forest health, reduce fire risks, and recreate the forest's historic composition. According to the plaintiffs, the USFS had failed to comply with the National Forest Management Act (NFMA) and National Environmental Policy Act (NEPA) in developing its plans. A district court had denied the plaintiff's request for a preliminary injunction, but a three-judge panel of the Ninth Circuit reversed. The en banc court vacated the injunction, finding that the original panel had overstepped its bounds.

From the outset, the opinion makes clear that its purpose is to reorient aspects of the Ninth Circuit's environmental jurisprudence, at least with regard to federal land management. As Judge Smith summarized:

In essence, Lands Council asks this court to act as a panel of scientists that instructs the Forest Service how to validate its hypotheses regarding wildlife viability, chooses among scientific studies in determining whether the Forest Service has complied with the underlying Forest Plan, and orders the agency to explain every possible scientific uncertainty. As we will explain, this is not a proper role for a federal appellate court. But Lands Council's arguments illustrate how, in recent years, our environmental jurisprudence has, at times, shifted away from the appropriate standard of review and could be read to suggest that this court should play such a role.

As I noted in my prior post, the en banc court explicitly overruled its prior decision in Ecology Center v. Austin which had effectively required the USFS "to always 'demonstrate the reliability of its scientific methodology' or the hypotheses underlying the Service's methodology with 'on the ground analysis,'" when making projections about the likely impact of forest management projects. [Judge McKeown, who dissented in Ecology Center was on the en banc panel.] According to Judge Smith's opinion, Ecology Center adopted overly expansive interpretations of circuit precedent, invented a legal requirement "not found in any statute or regulation," and "defied well-established law concerning the deference we owe to agencies and their methodological choices."

The en banc court also reins in the Ninth Circuit's NEPA jurisprudence quite significantly. Specifically, the court found that prior panels had adopted unduly rigorous standards for the Environmental Impact Statements (EIS) NEPA can require.

We have previously faulted the Forest Service for not addressing uncertainties relating to a project "in any meaningful way" in an EIS. [citations omitted] But none of NEPA's statutory provisions or regulations requires the Forest Service to affirmatively present every uncertainty in its EIS. Thus, we hold that to the extent our case law suggests that a NEPA violation occurs every time the Forest Service does not affirmatively address an uncertainty in the EIS, we have erred. [citations omitted] After all, to require the Forest Service to affirmatively present every uncertainty in its EIS would be an onerous requirement, given that experts in every scientific field routinely disagree; such a requirement might inadvertently prevent the Forest Service from acting due to the burden it would impose.

While the opinion focuses on implementation of the NFMA and NEPA, it is likely to have a broader impact in environmental cases. The Ninth Circuit has been an outlier in environmental law. Among other things, the Ninth Circuit has applied NEPA's requirements in a more rigorous fashion, giving federal agency actions significantly more scrutiny do than other circuits (not to mention the Supreme Court). Last week's opinion is a significant rebuke to this approach and should herald somewhat more deferential review of agency actions in environmental cases.

How Significant Is Lands Council Decision?

The more I think about it, the more I think Lands Council v. McNair is an important decision. Here are some other assessments from the Jackson Hole Star Tribune:

U.S. Agriculture Department Undersecretary Mark Rey, who oversees the Forest Service, called this "the most important decision involving a Forest Service environmental case in the last two decades," saying it restores the ability of federal agencies, not meddling judges, to exercise discretion over timber sales.

"The judges established a much more limited framework for judicial review of Forest Service decisions -- a framework that's much more consistent with the standard use by other circuits," Rey told The Associated Press. "The court says its role is not to act as a panel of scientists. They wanted to move back to a more appropriate role."

Timber industry representatives said this will help stop judges from asserting their opinions over the decisions of Forest Service managers.

"We think it's a landmark case," said Tom Partin, president of the Portland, Ore.-based American Forest Resource Council. "It speaks volumes that 11 judges out of the 9th Circuit came up with this decision ... saying that the panel screwed up and that the judges aren't supposed to second-guess the forest managers."

Earth Justice, a nonprofit environmental law firm that's monitored this case but didn't represent the plaintiffs, contends claims by logging advocates and Rey are premature that this decision will radically shift the balance of power toward the agency and away from environmental groups.

"I don't know that it changes the law at all, frankly," said Todd True, from the group's Seattle office. "Environmental groups or anyone else asking the courts to review government action have always had the burden to show that the government acted arbitrarily and that it failed to consider some factor that's important. I don't think this decision says that these agency scientists get a free pass and can do whatever they want to, and the courts have to accept it."