Judge Roopali Desai,, nominated by President Biden to the court of appeals for the Ninth Circuit, wrote a 2-1 decision that reversed a lower court and ruled that commercial drilling on national forest land could not take place until the Forest Service assessed its environmental impact under the National Environmental Policy Act (NEPA). Biden judge Lucy Koh agreed, while Judge Patrick Bumatay, who was nominated by President Trump, dissented. The May 2024 decision was in Friends of the Inyo v United States Forest Service.
What is the background of this case?
Kore Mining Ltd. proposed doing commercial drilling to explore possible mineral deposits in the Inyo National Forest in California. Ordinarily, before deciding whether to approve such a project, the US Forest Service would assess its projected environmental impact under NEPA. But the Forest Service decided to approve the project without such an assessment by combining two categorical exclusions (CEs) from NEPA, which concerned short-term mineral investigations and timberland improvement activities that do not involve the use of herbicides. According to the Forest Service, while neither of these CEs alone would cover the project, combining them would do so and no additional environmental assessment was needed.
Several environmental groups and others strongly disagreed. They noted that the project could impact “wildlife,” including endangered species, “cultural resources, water quality, and recreation.” In addition, they maintained that attempting to combine CEs to avoid a separate environment review of the project violated federal regulations and NEPA. Friends of the Inyo, the Sierra Club, and several other groups sued the Forest Service in federal court.
The district court, however, granted summary judgment to the Forest Service. The environmental groups appealed to the Ninth Circuit.
How did Judges Desai and Koh and the Ninth Circuit Rule and Why is it Important?
Judge Desai wrote a 2-1 ruling that reversed the lower court and directed it to enter summary judgment on behalf of the environmental groups. As a result, the Forest Service decision was vacated and it will have to assess the environmental impact of the drilling project before deciding whether it can go forward.
In a decision that sets new precedent in the Ninth Circuit, Judge Desai explained that the relevant NEPA regulation “unambiguously prohibits combining CEs to approve a proposed action, where no single CE could cover the proposed action alone.” She carefully analyzed the language, history, structure, and purpose of NEPA and the regulation to reach that result. As she wrote, “CEs are designed to streamline” the environmental review process when “a class of proposed actions has been found to have little or no effect on the environment.” But if an agency combines CEs or otherwise applies them in a way that “circumvents NEPA’s procedural requirements and renders the environmental impact of a proposed action unknown,” she went on, the purpose of NEPA and its exclusions are “undermined”. Allowing such a result, she concluded, “will swallow the protections of NEPA.”
Judge Desai also explained what was wrong with Judge Bumatay’s dissenting view that the Forest Service’s error was “harmless.” Precisely because the agency failed to take the “hard look” required by NEPA at the proposed drilling project, she wrote, there is “no support” in the current record for such a conclusion, and environmental assessment under NEPA is required.
The opinion of Judges Desai and Koh is obviously important to the environmental groups concerned with the Inyo National Forest, and an independent assessment of the proposed drilling project will now be required before the agency decides whether it can go forward. In addition, the decision sets an important precedent concerning proper review under NEPA and the impropriety of combining two or more CEs to short-circuit NEPA review. This is particularly true in the Ninth Circuit, which includes. California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. In addition, the ruling serves as an important reminder of the significance of promptly confirming fair-minded nominees to our federal courts.