Ninth Circuit Permits Greater Access to Courts for Environmental Groups

In The Wilderness Society v. United States Forest Service, an en banc panel of the Ninth Circuit unanimously decided to eliminate the “federal defendant” rule.  This rule categorically barred private parties, as well as state and local governments, from intervening of right in National Environmental Policy Act (NEPA) suits to defend  government actions.  The rule was justified on the grounds the federal government was the only proper defendant in NEPA actions.  Wilderness Society puts the Ninth Circuit in harmony with several of its sister circuits that have abandoned or eschewed the rule, and—perhaps more importantly—it rightly broadens access to the courts for nonfederal parties whose interests may be affected by environmental litigation under NEPA.

The federal defendant rule’s categorical prohibition on intervention of right by nonfederal parties in NEPA cases starkly clashes with the text of the applicable statute, Federal Rule of Civil Procedure 24(a)(2), which requires courts to consider whether putative intervenors’ legally protectable interests are related to the NEPA claims at issue.  In other words, Rule 24(a)(2) demands a case-by-case inquiry into the appropriateness of intervention rather than an unconditional preclusion on intervention by parties other than the federal government.  The Wilderness Society decision replaces the federal defendant rule with just such a case-by-case analysis.

A tremendously important result of Wilderness Society is a broadened access to the courts for environmental groups that are interested in NEPA litigation.  Until now, environmental groups, state and local governments, Indian tribes, and the like had to seek permissive intervention if they wanted to defend their interests in these actions.  Accordingly, it was unclear whether these parties would get much of a say, if any, in decisive environmental and public lands cases.  Now, however, nonfederal parties can more easily have meaningful effects on prevalent NEPA-based environmental actions.  This fact is reflected quite clearly in Wilderness Society’s thirty-seven amicus briefs that advocate for the abandonment of the federal defendant rule.

In addition to broadening access to the courts in environmental matters, the Wilderness Society decision encourages the efficient resolution of disputes by allowing parties to intervene in existing cases rather than requiring them to file separate ones.  It also increases the coherence of environmental law within the Ninth Circuit and increases the coherence of NEPA law among the circuits courts.  All in all, the decision is a boon for many environmental and preservation groups, and its genesis from a unanimous en banc panel means it is unlikely to be questioned anytime soon.