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2000-2009 Retrenchment in Environmental Law and New Challenges

In this period, an increasingly conservative Supreme Court limits the scope of some of the environmental laws, and makes it more difficult to challenge some agency decisions. Simultaneously, the Bush Administration increases the amount of energy exploration on Federal lands, which leads to considerable litigation.

In the Division during this period, the Appellate Section continues to attract top law school graduates through the Honors Program. At the instigation of Acting AAG John Cruden, the Section begins having moot courts for all of its oral arguments. Attorneys learn to electronically file documents as the courts slowly migrate to paperless filing. Jim Kilbourne continues to lead the Section as Chief, deftly dealing with changes in the political leadership of the Division. Andrew Mergen ably oversees the high pressure natural resources/wildlife area of the docket, while Billy Lazarus provides calm leadership for the lands/takings/NEPA side of the Appellate docket. Greer Goldman does much to improve administrative functioning of the Section as Principal Assistant Chief, and also oversees the environmental law side of the Section’s caseload. When Greer leaves for the Audubon Society, Lisa Jones ably steps into that Assistant Chief slot.

The Section moves back to a newly renovated Main Justice Building in 2004; attorneys particularly appreciate the improved heating and air conditioning, but miss the Section library and the individual sinks in the offices. The Section now occupies two floors of the Ninth Street side of the building, and most attorneys have single offices.


Defining the Scope of the Clean Water Act – Before the Seventh Circuit, Ethan Shenkman successfully defends the Corps of Engineers’ denial of a permit under the Clean Water Act for a proposed landfill that would destroy ponds used by migratory birds. Jared Goldstein and John Bryson defend this result in the Supreme Court, but the Court in a 5-4 decision holds that the Corps' rule extending the definition of “navigable waters” under the Act to include intrastate waters used as habitat by migratory birds exceeds the authority granted to Corps by Congress. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”). Around the same time, Ethan surprises the Section by convincing a conservative panel of the Fourth Circuit that the digging of trenches to drain wetlands, with associated “sidecasting” of material, constitutes discharge of a pollutant covered by the Clean Water Act. United States v. Deaton, 209 F.3d 331 (4th Cir. 2000).


The 9/11 Terrorist Attacks – Along with the rest of Washington DC, the Section is jolted by the attack on the Pentagon. Many section attorneys have stories of spending hours reaching home that day. Jeff Dobbins, Todd Aagaard and David Shilton have to rent a car in Denver, where they all had arguments, and drive back to DC. The atmosphere of fear takes time to dissipate. New security measures proliferate, and the days of being able to walk into Federal buildings easily are gone for good.

A Particularly Heinous Environmental Crime – Jeff Dobbins successfully defends on appeal the conviction of Allen Elias, who sent employees into a cyanide-filled tank without safety equipment, and later lied to emergency personnel regarding the contents of the tank, leading to severe injury. The Ninth Circuit finds that RCRA's criminal enforcement provisions are meant to apply within States having authorized programs. United States v. Elias, 269 F.3d 1003 (9th Cir. 2001). Todd Kim successfully handles further appellate proceedings in the case after Jeff leaves for private practice in Portland.

Yucca Mountain Still in Litigation – When Nevada tries to shut off the Department of Energy’s water supply and the Nevada district court refuses to intervene, Jared Goldstein gets a quick reversal in the Ninth Circuit. United States v. Morros, 268 F.3d 695 (9th Cir. 2001).


Protecting Agencies Against Claims to Compel Action – Sue Pacholski and Tamara Rountree obtain an important administrative law victory when the Supreme Court holds that the Tenth Circuit erred in permitting a claim by an environmental group to compel the Department of the Interior to take certain actions to protect wilderness study areas. The Supreme Court agrees with our position that suits to compel agency action are appropriate only when Congress has specifically required an agency to undertake a discrete action. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (SUWA). The SUWA decision proves of immediate use to Anna Katselas, who is able to get the Ninth Circuit to withdraw an earlier unfavorable opinion and rule against claims that the Forest Service has a mandatory duty to consider the eligibility of streams for Wild and Scenic River designation, Center for Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir. 2005). And Tamara is able to get the Supreme Court to vacate an adverse 9th Circuit decision on this issue based on the ruling in SUWA. See Veneman v. Montana Wilderness Ass'n, Inc., 542 U.S. 917 (2004). SUWA rapidly becomes one of the most cited cases in Section briefs.

Missouri river during flood in 1933. Courtesy of NASA.The Missouri River Litigation – Persistent drought challenges the Corps of Engineers’ ability to perform its statutory functions of flood control and maintaining downstream navigation on the Missouri River, while also continuing to benefit uses such as irrigation, recreation, fish, and wildlife. Forced to make difficult choices, the Corps faces repeated lawsuits by competing users of the River. Over a six-year period, Robert Oakley works closely with the Corps and Fish and Wildlife Service to consistently win important Eighth Circuit victories upholding these agencies’ decisions relating to Missouri River management. See South Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir. 2003); In re Operation of the Missouri River System Litigation, 421 F.3d 618 (8th Cir. 2005); In re Operation of Missouri River System Litigation, 516 F.3d 688 (8th Cir. 2008).


Clarifying When the United States May Be Liable for Breach of Trust – As lower courts continue to struggle with increasing numbers of breach of trust claims by individual Indians and Tribes, the Supreme Court provides some guidance with regard to Tribal claims in two cases decided in 2003. Todd Aagaard helps convince the Supreme Court that the Navajo Nation cannot obtain damages for an asserted breach of fiduciary duty by the Secretary of the Interior in failing to promptly approve a royalty rate increase under a coal lease, because the regulations relied upon do not create detailed fiduciary responsibilities. United States v. Navajo Nation, 537 U.S. 488 (2003). Ann Peterson has less luck in United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003), where the Court finds that a statute providing that a former military post was to be held by the United States in trust, and used for school purposes, establishes a fiduciary relationship giving rise to a cause of action for damages.

Challenges to Forestry Projects – Revised Forest Service regulations issued in 2000 under the National Forest Management Act, spark numerous litigation challenges, particularly in the Tenth Circuit. That Court issues a series of eight sometimes conflicting decisions on the meaning of the regulations and in particular their “best available science” standard. See. e.g., Utah Environmental Congress v. Russell, 518 F.3d 817 (10th Cir. 2008) (“UEC VI”). Mark Haag ably handles many of these appeals; John Arbab and Michael Gray also make major contributions to the effort.

Mexican Trucks and the Scope of NEPA Obligations – In a case handled by John Smeltzer, the Ninth Circuit holds that the Department of Transportation failed to adequately consider the environmental impacts of Mexican trucks operating in the United States, when it promulgated regulations governing the certification of the safety of those trucks. The Supreme Court grants the Government’s petition for certiorari, and reverses in a decision making clear that NEPA does not require an agency to evaluate environmental impacts that it has no ability to prevent. Department of Transp. v. Public Citizen, 541 U.S. 752 (2004). 


Limiting Protection of Wetlands That Are “Adjacent” to Navigable Waters – While the Supreme Court’s 2001 decision in SWANCC raises concerns that protection of wetlands will be compromised, the Section continues to obtain decisions in the courts of appeals upholding the application of the Clean Water Act to wetlands. Todd Kim obtains a victory in Carabell v. Corps of Engineers, 391 F.3d 704 (6th Cir. 2004), and Katherine Hazard in Rapanos v. United States, 376 F.3d 629 (6th Cir. 2004); in both of these the courts of appeal uphold Clean Water Act jurisdiction over wetlands that are adjacent to navigable waters. The Supreme Court, however, decides it needs to wade back into this controversy, and in a badly fractured decision vacates these Sixth Circuit decisions and remands with instructions. Rapanos v. United States, 547 U.S. 715 (2006).

Religion Issues in Public Lands Management – When a case arises challenging the presence of a cross installed by the Veterans of Foreign Wars on a hill in the Mojave National Preserve, the Section turns to Kati Kovacs, who has already gained substantial expertise in religion issues in the course of handling cases involving claims of religious rights to possess eagle feathers. See, e.g., United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002). Kati handles the cross case through two trips to the Ninth Circuit, and helps convince the Supreme Court to grant certiorari, hopefully to straighten out this confused area of law. See Buono v. Norton, 371 F.3d 543 (9th Cir. 2004); Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008), cert. granted, 129 S. Ct. 1313 (2009). Another important religion case arises when several Tribes challenge a Forest Service permit authorizing use of recycled wastewater to make artificial snow for a ski resort on National Forest land in Arizona. Lane McFadden successfully defends the Forest Service before an en banc panel of the Ninth Circuit, which holds that the project does not substantially burden the free exercise of religion by Tribal members. Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008).

Armed Forces Training – With the ongoing wars in Afghanistan and Iraq, the armed forces need expanded facilities and bases for training, and these efforts sometimes lead to lawsuits. The Section is largely successful in defending these cases on behalf of the Air Force (Davis Mountains Trans-Pecos Heritage Ass'n. v. Federal Aviation Admin., 116 Fed. appx. 3, 2004 WL 2295986 (5th Cir. 2004) (Stephanie Tai), and Fed. App. 820 (5th Cir. 2009) (Kati Kovacs)), the Navy (National Audubon Society v. Department of Navy, 422 F.3d 174 (4th Cir. 2005) (Aaron, Avila)) and the Army (Ilio'ulaokalani Coalition v. Rumsfeld, 464 F.3d 1083 (9th Cir. 2006) (Michael Gray)). Efforts to defend the Navy’s use of sonar in training are discussed below. 


Columbia River Salmon and Steelhead – The troubled state of fish runs on the Columbia River and its tributaries sparks complex litigation, much of it involving the adequacy of biological opinions rendered by the National Marine Fisheries Service (NMFS) under the Endangered Species Act. Ellen Durkee and Jennifer Scheller Neumann ably defend NMFS, but run into considerable skepticism from the Ninth Circuit regarding whether measures adopted by NMFS to avoid jeopardy to species are adequate. See National Wildlife Federation v. NMFS, 422 F.3d 782 (9th Cir. 2005); National Wildlife Federation v. NMFS, 524 F.3d 917 (9th Cir. 2008). This litigation shows no sign of a quick resolution.


A Victory for Clean Air – Kathy Barton helps convince the Supreme Court that the Environmental Protection Agency properly applied its regulations to require Duke Power Co. to obtain a permit and comply with strict conditions, before making certain modifications to its coal-fired plants. Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007). Argument for the successful environmental group petitioners is presented by Appellate Section alum Sean Donahue.

The Biscuit Fire Litigation – The 2002 Biscuit Fire burns 500,000 acres, the largest fire in Oregon history. Following the fire, the Forest Service and the Bureau of Land Management undertake to recover the burned lands in one of the largest timber salvage projects ever. This lead to complex and contentious litigation, with multiple fast-paced appeals to the Ninth Circuit. Lisa Jones handles the appeals, winning all of them. See, e.g., Siskiyou Regional Educ. Project v. Goodman, 219 Fed. Appx. 692, 2007 WL 201128 (9th Cir. 2007); Cascadia Wildlands Project v. Goodman, 203 Fed. Appx. 858, 2006 WL 3147418 (9th Cir. 2006); Cascadia Wildlands Project v. Conroy, 159 Fed. Appx. 769, 2005 WL 3449061 (9th Cir. 2005).

Defining Limits on Application of the Endangered Species Act – In a case handled for the Section by David Shilton, the Supreme Court reverses the Ninth Circuit and holds that the Endangered Species Act’s provisions on consultation and jeopardy cover only discretionary agency actions and not actions that an agency is required by statute to undertake once certain specified triggering events have occurred. National Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007). In a subsequent Eleventh Circuit case handled by Bob Lundman, that Court rules that FEMA has enough discretion to consider endangered species in its administration of the National Flood Insurance Program to warrant a finding that the Endangered Species Act applies. Florida Key Deer v. Paulison, 522 F.3d 1133 (11th Cir. 2008).


Climate Change Takes Center Stage – In Massachusetts v. EPA, 549 U.S. 497 (2007), a case briefed by the Environmental Defense Section, the Supreme Court makes clear that global climate change is an environmental phenomenon that agencies cannot ignore. Soon after, the Ninth Circuit cites this case, along with gathering evidence of harmful effects of global warming, in the course of striking down the Department of Transportation’s fuel economy standards for light trucks, in a case handled for the Appellate Section by Ron Spritzer. Center for Biological Diversity v. National Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 2008). Soon, climate change issues begin to appear in scores of the Section’s cases, particularly those invoking NEPA.

Navy Sonar and the Standards for Injunctive Relief – The Navy’s attempts to comply with NEPA, ESA, and the Marine Mammal Protection Act in connection with use of sonar in training exercises off California, spawns intense litigation in the Ninth Circuit, which is handled in the Section chiefly by Allen Brabender, Kati Kovacs, Michael Gray and Andrew Mergen. Restrictive injunctions against certain use of mid-frequency sonar lead to a favorable Supreme Court decision, holding that the Ninth Circuit had been using an overly-lenient test for granting preliminary injunctions, and stressing the importance of the public interest in continued training. Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365 (2008).


A Ninth Circuit Turnaround on Review of Forestry Projects – While forestry projects proposed in the West since the late 1980s tend to be smaller and more oriented toward forest health than in the past, it proves difficult to convince the Ninth Circuit that the National Forest Management Act and NEPA have been satisfied. In a case handled by Aaron Avila, the Court holds that the Forest Service must affirmatively demonstrate the reliability of the methodology underlying its analysis, Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir. 2005), and in a case handled by Ron Spritzer, holds that the Forest Service must use on-the-ground verification to support its modeling results. Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005). After a project in Idaho is set aside by a three-judge panel, Tom Swegle of the Policy and Legislation Section teams up with Andrew Mergen to convince the en banc Court to grant rehearing and reconsider this troubling line of authority. The en banc court unanimously issues a reversal, expressly overruling Austin, sharply limiting Lands Council, and generally limiting the degree to which reviewing courts may second-guess the methodology or the technical determinations of expert agencies. The Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008).


The Supreme Court Trims Liability Under CERCLA – After John Stahr wins yet another CERCLA victory in the Ninth Circuit, it begins to appear that he may have won the case a bit too thoroughly. John finds this an opportune time to retire, and Aaron Avila takes over briefing duties. The Supreme Court, in an 8-1 decision, takes umbrage at the notion of imposing liability on a shipper of useful chemicals to the site, even where the shipper determined the transfer practices that led to the spillage of hazardous waste. The Court also disapproves of holding a railroad that caused some of the spillage at the site jointly and severally liable for the entire cleanup. Burlington Northern and Santa Fe Ry. Co. v. United States, 129 S. Ct. 1870 (2009).


Updated September 14, 2023