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

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 APA, 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. The district court denied Plaintiffs’ motion for summary judgment and dismissed their claims with prejudice. The court held that BLM did not violate the NPRPA or NEPA because BLM conducted an adequate analysis of possible alternatives, and that BLM adequately analyzed the indirect and cumulative GHG emissions impacts of the project. Regarding Plaintiffs’ ANILCA claims, the court held that BLM complied with the Act’s requirements for evaluating subsistence uses, and that BLM did not improperly limit the scope of its analysis. Under ESA, the Court held that FWS did not err in finding that there would be no incidental take of polar bears, therefore, BLM’s reliance on this finding in its Biological Opinion was not in error, and that BLM did adequately consult with FWS and NMFS regarding the effects of the project’s carbon emissions. Plaintiffs appealed. Given Defendant ConocoPhillips Alaska, Inc.‘s plans to begin winter 2023 construction activities, Plaintiffs moved for a preliminary injunction pending appeal seeking to enjoin implementation of the project’s approvals. The federal district court denied Plaintiff’s motion and Plaintiffs filed a motion for reconsideration of this denial in the district court.

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. The parties stipulated to a dismissal of the case; BOEM is to complete a review of the Beta Unit DPPs no later than Dec. 15, 2024.

Commercial fishing sector Plaintiffs challenged Defendant’s Amendment 53 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico and the Amendment 53 Final Rule, seeking to invalidate them for violating the APA, NEPA, and the Magnuson-Stevens Fishery Conservation and Management Act. The federal district court denied Plaintiffs’ motion for summary judgment and granted Defendant and Defendant-Intervenor’s cross-motions for summary judgment, finding that the administrative record did not support Plaintiffs’ claims.

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. The federal appellate court affirmed.

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.

In two consolidated cases multistate coalition challenged EPA’s Aircraft PM Rule (Nov. 2022), through which the agency adopted particulate matter emission standards and test procedures applicable to certain classes of airplane engines. After the court’s denial of the petitions seeking review of the Aircraft GHG Rule in CA v. EPA No. 21-1018 (D.C. Cir. 2023), the parties moved to voluntarily dismiss these consolidated petitions for review.

Plaintiffs challenged Section 4(a) of Executive Order 13990 and Secretarial Order 3401, which respectively ordered and implemented a moratorium on all federal approvals of oil and gas operations on the Coastal Plain of Alaska. The district court denied Plaintiffs’ motions for summary judgment, including that of the State of Alaska, and granted Defendants cross motions for summary judgment, dismissing all claims against Defendants with prejudice. Among the Plaintiffs numerous claims, the court found that the moratorium had statutory authority, did not violate the Alaska National Interest Lands Conservation Act (ANILCA), the Federal Land Policy and Management Act, or the APA, and that Defendants did not unlawfully delay or unreasonably withhold agency action. Plaintiffs filed a motion to alter or amend the summary judgment order and judgment on September 5, 2023 and filed a motion to vacate the order, or a motion for relief from final judgment in the alternative, on October 17, 2023. Plaintiff AIDEA filed a new lawsuit in the D.C. Circuit (23-3126) seeking judicial review of the September 6, 2023 DOI and BLM cancellation of AIDEA’s oil and gas leases discussed in the pending motions.

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.

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; the court granted Defendant’s motion to dismiss (March 2022). After Alaska appealed and the parties reached a settlement, the parties stipulated to dismiss the appeal. The federal district court subsequently granted in part Plaintiff’s motion to vacate the March 2022 judgment and approved the party’s stipulated settlement agreement. The district court also granted the party’s joint motion to stay proceedings until no later than December 31, 2024, by which the parties agreed Defendant’s will issue one or more decisions with regard to any land withdrawals that are the subject of this litigation.

Plaintiffs challenged the issuance of a January 2021 Record of Decision by the Bureau of Land Management’s (BLM) approving the Thacker Pass Mine Project. Plaintiffs petitioned the court to enjoin the mining company, Lithium Nevada, from proceeding with construction on the project. Plaintiffs alleged that BLM rushed the project’s approval process, violated federal environmental statutes, and ignored the project’s serious environmental impacts. The District Court of Nevada denied Plaintiff’s motion for a preliminary injunction, stating that Plaintiffs could not make a strong showing of the likelihood of success on the merits because BLM complied with the legal requirements necessary for approving the mine project. The Ninth Circuit Court of Appeals affirmed.

Multistate coalition challenged EPA’s Aircraft GHG Rule (Jan. 2021), through which the agency adopted particulate matter emission standards and test procedures applicable to certain classes of airplane engines. Petitioners argue that EPA should have adopted more stringent standards than it did. In a per curiam opinion, the D.C. Cir. found that the Rule was within EPA’s authority under section 231 of the CAA, and that the agency reasonably explained its decision to harmonize domestic standards with International Civil Aviation Organization’s (ICAO) standards, dismissing the petitions for review.

In consolidated cases, Petitioners, two regulated companies and three trade associations, challenged EPA’s October 2021 “Phasedown Rule” establishing the allowance allocation and trading program under the American Innovation and Manufacturing Act for the regulation and phasedown of the use of hydrofluorocarbons (a chemical refrigerant). Petitioners sought for the court to hold unlawful, vacate, enjoin, and set aside certain provisions of the rule prohibiting the sale of regulated substances contained in disposable cylinders and mandating the tracking of the movement of cylinders containing regulated substances, including through the use of QR codes. The petitioners argued that the agency exceeded its statutory authority and that the AIM Act violates the nondelegation doctrine. In a mixed opinion, the Court of Appeals denied one of the regulated companies’ petitions for review (No. 21-1253), the nondelegation challenge, and one of the statutory arguments. However, the Court granted the petitions for review in No.‘s 21-1251 and 21-1252. The Court held that EPA failed to identify a statute authorizing its QR-code and refillable-cylinder regulations and vacated and remanded those parts of the rule to the agency. The petition for rehearing in No. 21-1253 was denied.

Louisiana challenged National Marine Fisheries Service rule requiring turtle exclusion devices on certain shrimping boats. The federal district court originally granted the Plaintiff’s motion for preliminary injunction but most recently denied the Plaintiff’s motion for summary judgment and dismissed their claims for lack of subject matter jurisdiction. The Court of Appeal for the 5th Circuit affirmed the district court’s ruling, and upheld summary judgment in favor of NMFS, due to Plaintiffs’ lack of standing.

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.

Petitioners, two oil and gas associations, challenged April 2022 Final Rule issued by DOT and the Pipeline and Hazardous Materials Safety Administration (PHMSA), which revised federal pipeline safety regulations to require the installation of remote-controlled or automatic shut-off valves in some types of new or replaced gas and hazardous liquid pipelines. Petitioners challenged the standard as it applies to “gathering” pipelines used to collect raw gas or crude oil from a well. Petitioners argue that PHMSA unlawfully failed to disclose the economic basis for regulating gathering pipelines when it proposed the standard and failed to make a reasoned determination that regulating these pipelines was appropriate. The federal court of appeals granted the petition for review and vacated the final rule as it applies to gathering pipeline facilities.

Plaintiffs challenged the approval by USFS and FWS of the Knotty Pines Project, claiming that the Project violated NEPA, APA, ESA, and the National Forest Management Act. The district court granted the preliminary injunction, holding that Plaintiffs were likely to succeed on the merits of their claim that the USFS and FWS did not adequately consider illegal motorized vehicle uses’ impact on grizzly bears, and showed imminent irreparable harm to their use of national forest and to grizzly bears. Furthermore, Plaintiffs showed irreparable harm to grizzly bears to be caused by the project, and the balance of the equities and public interest favored grizzly bears.

Plaintiffs filed an injunction against the Bureau of Reclamation alleging that the Bureau violated NEPA and the APA when they approved a Proposed Water Transfer involving the Colorado River. The district court denied the plaintiffs’ motion for preliminary injunction, finding Plaintiffs unlikely to succeed on the merits and unlikely to suffer irreparable harm from the Proposed Water Transfer.

Plaintiffs challenged the Houston South Vegetation Management and Restoration Project, specifically the Forest Service’s Dec. 2022 issuance of a Supplemental Information Report (SIR) for the project instead of a supplemental Environmental Assessment (EA) or Environmental Impact Statement after the court found the 2019 EA inadequate (Mar. 2022). Plaintiffs allege that the Project, which consists of commercial logging, road building and trail improvements, herbicide application, and prescribed burning in the Hoosier National Forest -- the only National Forest within the state of Indiana -- will further impact Lake Monroe and the surrounding watershed. The federal district court granted Plaintiff’s motion for preliminary injunction. Plaintiffs stipulated to a voluntarily dismissal of their action after USFS withdrew the SIR to allow the Service to further evaluate the original decision.

Plaintiffs challenged USFWS decision to issue a five-year incidental take regulation under the Marine Mammal Protection Act, allowing the Alaska Oil and Gas Association (AOGA) to move forward with its petition for oil and gas development in the North Slope, including an authorization to take the Southern Beaufort Sea stock polar bears and Pacific walrus. On de novo review, the federal district court adopted the recommendations of the magistrate judge to deny Plaintiff’s motion for summary judgment and grant that of Defendant’s.

Plaintiffs challenged USFS February 2023 approval of a project that would authorize aerial shootings by the Animal and Plant Health Inspection Service of “unauthorized” cattle in the Gila National Forest. Plaintiffs allege (1) that this approval violates a June 30, 2022 stipulation by which USFS is to provide Plaintiffs and the public with at least 75 days’ notice of its decision to shoot cattle before conducting such operations, (2) that the USFS has no legal authority to carry out the aerial shooting, and (3) that the USFS violated NEPA by failing to fully consider all significant environmental impacts of the aerial shooting. The federal district court denied Plaintiff’s motions for a temporary restraining order and preliminary injunction.

Plaintiff’s challenged the Forest Service’s Spirit Lake Project Environmental Assessment (April 2020) and Decision Notice/Finding of No Significant Impact (March 2021). The federal district court granted Defendant’s motion for summary judgment. The federal appeals court affirmed and subsequently denied the Plaintiff’s petition for panel rehearing.

Plaintiffs challenged Defendant’s February 2021 Finding of No Significant Impact (FONSI) and Environmental Assessment as inadequate and arbitrarily eliminating a decades-old “hopper dredging window” put in place to limit dredging to certain times of year. The federal district court granted Plaintiff’s motion for summary judgment and denied that of Defendants. The court found that Defendants failed to take a hard look at the action’s environmental impacts and offered an explanation for its decision that runs counter to the evidence before the agency, therefore such decision was arbitrary and capricious. The court remanded the matter to the agency for further consideration. Defendants voluntarily dismissed their appeal.

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.

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.