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Ninth Circuit revives WildEarth Guardians' lawsuit challenging abbreviated NEPA reviews of "predator control."

The “Animal and Plant Health Inspection Service,” known to its friends as APHIS, has long carried out and cost-shared the world’s largest wildlife killing operation in the name of “predator” and “pest” control.  Since 1994, APHIS and its operational arm APHIS.svg“Wildlife Services” have tiered their summary NEPA reviews to a Programmatic Environmental Impact Statement (PEIS) and prepared semi-annual environmental assessments and findings of no significant impact (EA/FONSIs).  This has meant that the PEIS has grown increasingly dated.  Indeed, the PEIS is now so dated that it predates the agency’s own euphemistic name: back then, Wildlife Services was called “Animal Damage Control”!

WildEarth Guardians and others sued in 2012 after one EA/FONSI done in connection with Nevada’s program was tiered to the 1994 PEIS. They alleged that the science and analysis behind that PEIS were even older—and that newer, more accurate information on predator extermination policies had since become available.  The district court kicked the claims on standing, finding that WildEarth Guardians and the others hadn’t met their burden of proving injury, causation, and redressability. Yesterday, the Ninth Circuit reversed.  In holding that plaintiffs had pled sufficient harm connected to the PEIS, it continued its developing jurisprudence on “procedural injuries.”

In essence, the Ninth Circuit holds that plaintiffs alleging a procedural injury face a relaxed causation and redressability test.  Flawed procedures are, in some sense, their own redressable injury, assuming some possibility that, had they been correct, a different outcome might have ensued.  And if a nationwide EIS was used to continue a program in Nevada where the plaintiffs alleged they were being affected, that is sufficient standing to challenge the nationwide EIS.  So back to the district court they go.

See WildEarth Guardians et al. v. U.S. Dept. of Agriculture, ___F.3d ___ 2105 WL 4604142 (9th Cir. 2015).

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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