2021 and Beyond: Environment and Energy Cases Involving the Biden Administration

Plaintiffs challenged USFS approval of the Long Valley Exploration Drilling Project, a mining project near Mammoth Lakes, CA, under the APA, NEPA, and the Forest Service Organic Administration Act of 1897. The federal district court granted Defendants’ motion for summary judgment and dismissed the Plaintiff’s motion for summary judgment after finding the USFS’ decision not arbitrary or capricious. The federal court of appeals reversed.

Plaintiffs challenged Defendant’s April 2021 issuance of a CWA Section 404 permit to Moda Ingleside Oil Terminal, LLC (“Moda”) for the proposed expansion of the Moda Ingleside Energy Center in the Corpus Christi Ship Channel in violation of NEPA and the CWA. The federal district court denied Plaintiff’s motion for summary judgment and granted that of Defendants.

Oil refinery petitioners challenged an EPA final rule extending deadlines for reporting compliance with the Renewable Fuel Standard Program. The program is codified in the Clean Air Act and requires that all transportation fuel sold in the United States contains an annually determined volume of renewable fuel. Petitioners allege the extension rule unlawfully compresses annual compliance obligations under the RFS Program. The federal appeals court denied the petitions for review, holding that when the EPA issues untimely renewable fuel standards, the CAA does not entitle parties to a minimum compliance interval or 13 month compliance lead time.

The American Public Gas Association challenged DOE supplement (Apr. 20, 2022) to a final rule (Jan. 10, 2020) that set more stringent energy efficiency standards for commercial packaged boilers for commercial and multifamily residential buildings. Given the DOE’s lack of notice and comment after having relied on new literature and evidence, the federal appeals court granted the petitions, vacating the final rule and supplement and remanding to the agency.

Plaintiff and Plaintiff-Intervenors challenged a National Marine Fisheries Service Biological Opinion and Final Rule as arbitrary and capricious and in violation of the ESA; the rule implemented the closure of certain fishing grounds for right whale conservation purposes. The federal district court denied Plaintiffs’ motion for summary judgment and granted that of Defendants. On appeal, the federal appeals court issued a per curiam opinion, reversing the district court’s grant of summary judgment to NMFS and entering summary judgment for Plaintiffs on count one and four of their complaint. Additionally, the Court remanded the final rule back to NMFS.

Resident of East Hampton, New York challenged the construction of the South Fork Wind Farm and the South Fork Export Cable in Montauk Point, Long Island, seeking a preliminary injunction. Plaintiff claimed that BOEM violated the APA, NEPA, and the Outer Continental Shelf Lands Act (OCSLA) by failing to adequately consider the Project’s potential harm to the area’s drinking water and the offshore Atlantic cod population, as well as the Project’s negative economic impact. The federal district court denied Plaintiff’s motion for a preliminary injunction because Plaintiff failed to show the likelihood of irreparable harm should the injunction not be granted, as the Project’s plan includes mitigation measures to offset potential contaminants to the area’s drinking water and Plaintiff’s other arguments were speculative.

Plaintiff challenged the Forest Service’s Decision Memo (October 2018) and Supplemental Decision Memo (May 2021) approving the Hanna Flats Project, which includes logging, burning, and clear cutting of about 2,000 acres on the Idaho Panhandle National Forest. The federal district court granted Plaintiff’s motion for summary judgment in a separate action and remanded. In this new action, Hanna Flats II, the district court granted the Plaintiff’s motion for preliminary injunction and suspended the project until further order of the court. The federal appeals court vacated the district court’s grant of summary judgment in Hanna Flats I and preliminary injunction in Hanna Flats II and remanded both matters.

NGO coalition challenged the Bureau of Ocean and Energy Management’s lease of land in Gulf of Mexico for oil production for failure to estimate downstream greenhouse gas emissions. The federal district court issued a mixed opinion, vacating Lease Sale 257, and Intervenor-Defendants, American Petroleum Institute and State of Louisiana, appealed. The federal appeals court vacated the district court’s order and remanded with instructions to the district court to dismiss the case as moot given the Inflation Reduction Act’s provision that the leases won in Lease Sale 257 be issued.

Plaintiff challenged the Department of the Interior and the Bureau of Ocean Energy Management under the Outer Continental Shelf Lands Act (OCSLA) for failing to review development and production plans (DPPs) of Beta Unit Offshore programs in Los Angeles and Orange Counties. The federal district court granted in part and denied in part Defendants’ motion to dismiss Plaintiff’s claims. The Court dismissed Plaintiff’s claim that the agency’s review of the DPPs was arbitrary and capricious but allowed Plaintiff’s claim under OCSLA to continue, as well as their claim under the Administrative Procedure Act that BOEM unlawfully withheld or unreasonably delayed agency action.

Multistate coalition, led by Louisiana, challenged the use of interim social cost of carbon estimates issued by Interagency Working Group, seeking preliminary injunction. The Plaintiffs alleged that the use of the interim estimates would result in increased regulatory and financial burdens. The federal district court granted the preliminary injunction, which the federal appeals court stayed pending the Defendant’s appeal. The federal appeals court dismissed the case due to the Plaintiff’s failure to prove standing since, amongst other things, the use of the interim estimates is left to agency discretion and therefore the alleged harm is merely hypothetical and not an injury in fact as required for the court to have jurisdiction over the case.

Plaintiffs challenged the second approval (Mar. 2023) of the ConocoPhillips’ Willow Project in the National Petroleum Reserve in Alaska, seeking a preliminary injunction to enjoin winter 2023 construction activities for the Project. Plaintiffs claimed that BLM, in approving the Willow Project, violated NEPA, the Naval Petroleum Reserves Production Act, and the ESA by failing to consider reasonable alternatives, failing to properly analyze downstream global greenhouse gas emissions from future oil development that the project will facilitate, and failing to consider the impact of carbon emissions on threatened species. The federal district court denied Plaintiff’s motion for preliminary injunction, as the Plaintiffs did not demonstrate that they would suffer irreparable harm if construction were to continue and the balance of the equities and the public interest did not tip in Plaintiffs’ favor. Plaintiff’s voluntarily dismissed their appeal of this decision and moved for summary judgment on July 26, 2023.

City of Los Angeles challenged FAA decision allowing the construction of a replacement terminal at the Bob Hope “Hollywood Burbank” Airport. The federal appeals court granted the petition for review in part, and remanded the case to the FAA. The court held that the FAA failed to take a hard look at construction noise impacts and based its cumulative impacts analysis on its inadequately considered conclusions about construction noise. On remand, the FAA must address 1) the deficiency in its construction noise analysis, 2) the resulting deficiency in its cumulative impacts analysis, and 3) the resulting deficiency in its environmental impacts analysis.

Plaintiff challenged a 2021 incidental take permit issued by NMFS that authorized the taking of ESA-listed humpback whales in sablefish pot fishery operations. The district court granted the Plaintiff’s motion for summary judgment, holding that the NMFS violated the Marine Mammal Protection Act (“MMPA”) and the APA by issuing the permit without having developed a take reduction plan. In July 2023, both parties signed a settlement agreement, where NMFS agreed to establish a take reduction team. The district court remanded the MMPA permit for the sablefish pot gear fishery to NMFS for further consideration.

Oklahoma sought to enjoin the Department of Interior from enforcing its May 18, 2021 decision, which the state argued would unlawfully strip it of its jurisdiction to regulate surface coal mining and reclamation operations by imposing, instead, a federal program within the lands of the Muscogee (Creek) Nation. The federal district court denied Oklahoma’s motion for preliminary injunction, holding that the plain language of the Surface Mining Control and Reclamation Act precluded state-administered reclamation or regulatory programs on “Indian land.” On summary judgment, the federal district court agreed with the defendants that the Office of Surface Mining Reclamation and Enforcement is the sole regulatory authority within the boundaries of the Creek, Cherokee, and Choctaw Reservations, that Oklahoma does not have jurisdiction over surface mining or reclamation operations on these lands, and that application of the state’s regulatory and reclamation programs to land within the Reservations is preempted by the SMCRA. Most recently, the federal appeals court granted the parties’ stipulation to dismiss the Plaintiff State’s appeal.

Unsuccessful nominees challenged EPA decision that reconstituted the agency’s advisory committees on air quality and sought a preliminary injunction or, in the alternative, partial summary judgment as to its claims regarding one of the committees. The Plaintiff’s motion for partial summary judgment was denied.

Plaintiffs challenged two projects authorized by Defendants to remove and thin some dead and down trees in the Yosemite Park area. The federal district court denied the Plaintiff’s motion for preliminary injunction because they failed to establish a likelihood of success on the merits and the public interest was in favor of denying the injunction.

Lobster industry parties sought preliminary injunction against NMFS rule, which implemented a restricted area for buoy-line lobster fishing to prevent North Atlantic right whale entanglements. The federal district court granted Plaintiffs’ motion for preliminary injunction in part and denied in part, enjoining enforcement of the seasonal closure until a decision was made regarding whether the rule was lawful. Government appealed and the federal appeals court vacated Plaintiff’s preliminary injunction and remanded for further proceedings. Upon remand, the parties stipulated to a dismissal of the action.

Plaintiffs challenged November 2021 Final Rule issued by NMFS, which implemented Amendment 14 to the Fishery Management Plan for Salmon Fisheries in the EEZ off the Coast of Alaska (the “Salmon FMP”). The amendment would prohibit commercial salmon fishing in the federal waters of the Cook Inlet and would defer all management decisions for the Cook Inlet salmon fishery to the State of Alaska. The federal district court issued a mixed opinion on summary judgment. The court held that 1) NMFS acted arbitrarily and capriciously in excluding the recreational salmon fishery in the Cook Inlet EEZ Area from the Salmon FMP, 2) the rule’s delegation of the management of the Cook Inlet salmon fishery to the State of Alaska is inconsistent with the Magnuson-Stevens Act, and 3) Amendment 14 and the Final Rule do not comply with national standards for fishery conservation and management. Plaintiffs, however, failed to establish that the Final Rule violated NEPA. Further, the court held that Plaintiffs in a consolidated case, Humbyrd et al v. Raimondo et al (No. 21-0247), lacked standing to bring their constitutional claims against the Final Rule and denied their motion for summary judgment. The Court vacated the Final Rule and remanded to NMFS to issue regulations implementing a new FMP amendment consistent with its order no later than May 1, 2024.

NGO coalition challenged logging project that would potentially affect the critically endangered Southern Sierra Nevada Pacific Fisher. The federal appeals court reversed dismissal of one claim and remanded for further consideration. After the federal district court denied Plaintiff’s motion for preliminary injunction, Plaintiffs filed notice of voluntary dismissal and court closed the case.

State challenged Bureau of Land Management decision which delayed the effect of Trump-era Public Land Orders (“PLO’s”). The federal district court held that Congress did not intend to impose on BLM an obligation to publish a PLO once it is signed and that the decision to delay the effect of the PLO’s was not a final agency action. Therefore, Defendant’s motion to dismiss was granted by the federal district court.

Ranch challenged EPA authority to enter its property to investigate potential CWA violations and challenged adequacy of EPA FOIA response. The federal district court granted the Defendant’s motion to dismiss and denied Plaintiff’s motion for leave to file a second amended complaint.

Multistate coalition, led by Texas, challenged decision revoking permit granted for construction of Keystone XL Pipeline. The federal district court granted the Defendant’s motion to dismiss.