"The Ninth Circuit has removed a long-standing obstacle that prevented private parties and local governments from intervening in National Environmental Policy Act (“NEPA”) cases. In Wilderness Society v. U.S. Forest Service, an en banc panel of the Ninth Circuit jettisoned the “federal defendant” rule, which allowed only the lead federal agency to defend a NEPA case and precluded other parties, who often had significant interests at stake, from intervening as of right in the lawsuit. The decision sets the stage for increased participation in NEPA litigation by a wide variety of businesses, trade associations, state and local governments, and other third parties with a significantly protectable interest in the outcome.
In determining whether to allow a third party to intervene in litigation, federal courts apply Federal Rule of Civil Procedure 24(a)(2). The rule provides for intervention when a party (1) timely files a motion to intervene; (2) claims a “significantly protectable” interest relating to the property or transaction at issue; and (3) claims an interest that is inadequately represented by the parties to the action. Courts have looked to practical and equitable considerations to construe the rule broadly in favor of proposed intervenors.
Over the past 20 years, however, the Ninth Circuit had adopted a categorical prohibition of intervention as of right in NEPA actions. The Ninth Circuit held that private parties could not claim a direct, significantly protectable interest under NEPA because the statute imposes a procedural obligation only on the federal agencies to evaluate significant environmental impacts prior to undertaking major actions. Moreover, Ninth Circuit courts held that a party’s significant economic stake in a case was not a protectable interest because NEPA provided no protection for purely economic interests. While some courts allowed permissive intervention at the court’s discretion, intervention was unavailable as a matter of right."
Get the Story:
Peter Hsiao and Joshua G. Simon:
A seat at the table: Ninth Circuit announces new rules for defending NEPA actions
(Lexology 1/18)
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9th Circuit Decision:
Wilderness Society v. USFS (January 14, 2011)
Tribal Amicus Brief:
Kootenai Tribe, Confederated Salish and Kootenai Tribes, Coquille Indian Tribe, Kalispel Tribe, Shoshone-Bannock Tribes, Confederated Tribes of Siletz
Indians, Metlakatla Indian Community
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