January 21, 2011

A win for property owners and fairness

By A win for property owners and fairness

Author: Damien M. Schiff

Last week, the Ninth Circuit Court of Appeals, sitting en banc, overturned, in Wilderness Society v. United States Forest Service, the circuit's "none but the federal defendant" rule governing private-party intervention in cases brought under the National Environmental Policy Act (NEPA).  The Ninth Circuit's prior rule had been that private parties could not intervene to defend their property interests when the government had been sued under NEPA, because NEPA applies only to federal agencies and thus private parties do not by definition have any "significant protectable interest" in whether the feds have violated NEPA.  The unfairness of the rule is pretty clear:  private landowners regularly have their interests threatened by environmentalist NEPA lawsuits that seek to torpedo all sorts of federal projects, such as grazing on National Forests and water reclamation.  The injustice of the rule was exacerbated by the Ninth Circuit's own exception for environmentalists, who were allowed to intervene even in NEPA cases to defend against property owner lawsuits on the grounds that they had aesthetic interests affected by the underlying activity which they had supported in earlier adminstrative stages.  The Ninth Circuit's abandonment of the "none but the federal defendant" rule puts it in line with the vast majority of its sister circuits.  It also spells the end of an emerging and pernicious trend of expanding the rule to other environmental statutes, such as the ESA.

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