Plain talk in a Ninth Circuit dissent

June 07, 2012 | By DAMIEN SCHIFF

Last week, the Ninth Circuit Court of Appeals issued its en banc decision in Karuk Tribe of California v. United States Forest ServiceThe court held 7 to 4 that the Forest Service violated the Endangered Species Act when it failied to consult with the appropriate federal wildlife agencies regarding the effects on certain ESA-protected species caused by suction dredge mining.  What caught my eye about the decision was the dissent authored by Judge Milan Smith.  In that dissent, Judge Smith not only castigates the majority for its indifference to the very negative impacts that the majority’s decision will have on small mining operations throughout the West, but also criticizes a recent spate of Ninth Circuit environmental decisions that, in Judge Smith’s view, “undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.”

Judge Smith’s dissent begins by noting that, “[m]ost miners affected by this decision [requiring consultation for suction dredge mining authorizations] will have neither the resources nor the patience to pursue a consultation,” and “[a]s a result, a number of people will lose their jobs and the businesses that have invested in the equipment used in the relevant mining activities will lose much of their value.”

“But this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors.”  The dissent gives three recent examples of supposedly “green” decisions producing very bad results, the first of which is Northwest Environmental Defense Center v. Brown (in which PLF participated as amicus and which is currently on petition for cert to the Supreme Court) which imposes an entirely new permitting requirement on forest road owners, the result of which, in the dissent’s description, is the “imminent decimation of what remains of the Northwest timber industry.”

The dissent’s second example is Pacific Rivers Council v. United States Forest Service, which the dissent criticizes for overturning longstanding case law under the National Environmental Policy Act holding that agencies do not need to produce expensive and time-consuming environmental impact statements on every aspect of time-tiered projects until such impacts can at least be reasonably assessed and the time for decision-making is imminent.  The dissent anticipates that this decision “will dramatically impede any future logging in the West.”

The dissent’s third example is San Luis & Delta-Mendota Water Authority v. United States, which held that the California Central Valley water projects’ obligations to provide a certain amount of water for various environmental purposes would be satisfied only if the water provided “predominantly contributed” to those purposes.  Consequently, the decision’s impact in the dissent’s view will be “will be less, perhaps far less, water for irrigation in the San Joaquin Valley’s $20 billion crop industry.”

Judge Smith’s dissent is a powerful critique of the Ninth Circuit’s most recent environmental jurisprudence.  It may well help the government to seek review in the Supreme Court.

Nevertheless, Professor Holly Doremus criticizes the dissent at The Legal Planet Blog as “over the top” by “tak[ing] typical tea party rhetoric one step further.”  Professor Doremus explains:

Judges should be in the business of rational argument, of seeing and considering the nuances, and of doing their best to make sure that agencies are held to congressional mandates. They should not be aiming their opinions at Fox News, and seeking to shortcut debate with careless and unsupported allegations of judicial activism.

Fair enough, at least to extent that the economic impacts of a court’s decision generally shouldn’t play into the court’s decision-making analysis.  That being said, the criticism should go both ways.  It’s not uncommon for “green” judges to wax poetic in their opinions about the importance of protecting the environment, of protecting wetlands, of protecting various species, etc., and to use the supposed importance of these values to bolster the legitimacy of the legal interpretation that they reach.  If these judges can engage in this type of argument, why can’t the “tea party” judges (to use Professor Doremus’s categories) do the same?

It’s no answer to argue that Congress wanted courts to take environmental impacts into account when interpreting environmental protection statutes.  When Congress enacts laws, it is never motivated by one and only one consideration.  Indeed, with respect to perhaps the greenest of all federal environmental lawsthe Endangered Species Act—the Supreme Court has underscored that even it should be interpreted “to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives.”

Although Professor Doremus may have a stylistic point, I think that she ultimately misses Judge Smith’s main point, which is not that courts should kow-tow to certain economic interests, but rather that courts should be particularly reluctant to interpret statutes “aggresively” when the results of doing so are arguably quite harmful to the regulated public and cannot be easily corrected.