The Wilderness Society v. U.S. Forest Service

Jan 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35200. In this high interest case with many industry, agriculture, conservation and tribe intervenors, the Appeals Court indicated that it was revisiting its 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. The Appeals Court said, "Because the 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. When construing motions to intervene of right under Rule 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of NEPA actions."

 

    The Appeals Court indicates that to determine whether a putative intervenor demonstrates the "significantly protectable" interest necessary for intervention of right in a NEPA action, the operative inquiry should be, as in all cases, whether "the interest is protectable under some law," and whether "there is a relationship between the legally protected interest and the claims at issue." [citing: Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir. 1993)].

 

    The case addresses squarely the issue of "intervention of right in NEPA cases." Federal Rule of Civil Procedure 24(a)(2) requires a court, upon timely motion, to permit intervention of right by anyone who "claims an interest relating to the property or

transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest."

 

    The Appeals Court explains, "When analyzing a motion to intervene of right under Rule 24(a)(2), we apply a four-part test: (1) the motion must be timely; (2) the applicant must claim a 'significantly protectable' interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's interest must be inadequately

represented by the parties to the action."

 

    The Appeals Court explains further, "Our 'federal defendant' rule categorically precludes private parties and state and local governments from intervening of right as defendants on the merits of NEPA actions." [Citing: Churchill County v. Babbitt, 150 F.3d 1072, 1082, as amended by 158 F.3d 491 (9th Cir. 1998); Forest Conservation Council, 66 F.3d at 1499 n.11]. 

 

    Finally, the Appeals Court notes that, ". . .our application of the 'federal defendant' rule is out of step with all but one of our sister circuits that have addressed whether private parties may intervene of right on the merits of NEPA claims. [the various cases are cited].

 

    The Appeals Court concludes, "We now abandon the 'federal defendant' rule. When considering motions to intervene of right under Rule 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of NEPA actions. To determine whether putative intervenors demonstrate the 'significantly protectable' interest necessary for intervention of right in a NEPA case, the operative inquiry should be whether the 'interest is protectable under some law' and whether 'there is a relationship between the legally protected interest and the claims at issue.' [citing: Sierra Club, 995 F.2d at 1484]. A putative intervenor will generally demonstrate a sufficient interest for intervention of right in a NEPA action, as in all cases, if 'it will suffer a practical impairment of its interests as a result of the pending litigation.' [Citing: California ex rel. Lockyer, 450 F.3d at 441]."

 

    The Appeals Court rules, "Since the district court applied the 'federal defendant' rule to prohibit intervention of right on the merits in this NEPA case, we reverse and remand so that it may reconsider the putative intervenors' motion to intervene."

 

    Access the complete opinion (click here).

U.S. Magnesium, LLC v. EPA

Jan 14: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1269. On Petition for Review of a Final Action of U.S. EPA. The case concerns the NPL listing of a magnesium plant located in Tooele County, Utah, approximately 40 miles west of Salt Lake City and adjacent to the Great Salt Lake. The plant, which is now owned by petitioner US Magnesium LLC (USM), has produced molten magnesium since 1972, creating chlorine gas and hydrochloric acid as by-products. A network of ditches carries waste from the plant to an active waste pool. Just beyond that pool is an inactive waste pool, which was previously a recipient of waste.

 

    The EPA completed a Hazard Ranking System (HRS) evaluation for the US Magnesium site in 2008. The HRS requires the agency to analyze four "pathways": ground water migration, surface water migration, soil exposure, and air migration, and to plug the resulting individual pathway scores into a formula to obtain the site score. EPA calculated scores for two out of these four possible "pathways" -- air migration and soil exposure. Based on these, EPA computed a total HRS score of 59.18 for the site and subsequently added the site to the NPL.

 

    USM challenges the NPL listing as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." It claims that the EPA made four errors in calculating an HRS score and that if these errors were corrected, the USM site's

HRS score would fall below the 28.5 threshold for listing on the NPL.

 

    The Appeals Court indicates, "USM would have to prevail on its first alleged error and some combination of the other three alleged errors in order for the NPL listing to be arbitrary or capricious. (If we were to remand based on all the other three alleged errors, the site would still receive a total score of at least 50—21.5 more than the minimum score for inclusion on the NPL.). . . We are not persuaded that the EPA in fact erred in the first decision element claimed by USM to have been erroneous—the scoring of multiple "sources" for the air pathway."

 

    Finally, the Appeals Court concluded, "Because the EPA followed the HRS precisely in scoring the air migration pathway and affirmation of the EPA on that first issue results in a score above the cut off for inclusion on the NPL, listing of the USM site on the NPL was not arbitrary or capricious. The petition for review is therefore denied."

 

    Access the complete opinion (click here).