Relief in Sight

When NEPA Violations Invalidate the Agency Action

An important case out of Colorado’s North Fork Valley (pictured) in High Country Conservation Advocates v. United States, Civil Action No. 13–cv–01723–RBJ {?}  Ever since the Supreme Court’s decisions in Monsanto v. Geertson Seed Farms, 561 U.S. 139 (2010), and Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), environmental lawyers (and NEPA plaintiffs especially) have learned not to take judicial relief for granted.  In each of those cases the Court emphasized the  “equitable discretion” that courts retain—apparently as a matter of their inherent Article III powers—to decide against ordering any corrective action against an agency that has been found to have violated (in each of those cases) NEPA.  In a nutshell, the court is free to find NEPA noncompliance but, on the balance of equities as the court weighs them, refuse to grant any relief because  of it.

Last week, Judge R. Brooke Jackson of the District of Colorado ruled on plaintiffs’ “administrative appeal,” after requesting briefing on the appropriate remedy.  In an earlier order the court had ruled against the federal defendants’ (BLM and the Forest Service’s) NEPA violations.  It deemed three actions interrelated and invalidated each of them for NEPA compliance failures, including the Service’ promulgation of the Colorado Roadless Rule with an exemption for the North Fork Valley, see 36 C.F.R. 294.43(c)(1)(ix), the issuance of lease modifications to Arch Coal’s permits in that area, and the approval of Arch Coal’s exploration plan for the area.  In Thursday’s ruling, the judge vacated the permitting actions and invalidated the roadless rule exemption.

What is most interesting was the specific way in which this “vacatur” of the subject agency actions was cast in the judge’s opinion.  In a fascinating footnote, the court rejected the defendants’ arguments that this case involved circumstances necessitating the court’s equitable discretion at all:

Defendants rely heavily on [Monsanto] in their briefs. While Monsanto undoubtedly controls where a plaintiff is “seeking a permanent injunction,” the case is largely inapplicable here. Id. at 156. In Monsanto, neither party challenged the District Court’s vacatur of the agency’s [action]. Rather on appeal the case centered on whether the District Court’s additional remedial measures—enjoining the agency from [taking further action] pending completion of an EIS . . .—were permissible. In the instant case, the Court sees no need to enter such sweeping remedial measures, and indeed the plaintiffs do not ask for any. Rather the Court will hew to the narrow remedy of vacating each offending action and remanding to the agency for further proceedings.

In this, Judge Jackson found a ready detour around Monsanto and maintained that, as a simple violation of the Administrative Procedure Act, “vacatur” of the subject action involving the NEPA violation was the “normal” course.  Nothing especially discretionary about it!

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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