Environmental Law Prof Blog

Supreme Court Declines Cert re: preliminary injunction detour around administrative record

On Friday, the Supreme Court denied cert in Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147 (9th Cir. 2006).  The Forest Service had sought to eliminate plaintiff's dodge of record review in NEPA cases by filing a preliminary injunction based on non-record evidence.  This, of course, has always been a favorite approach for plaintiffs who secure the necessary experts only after losing before the agency.  Even though it was the 9th Cir., the Supreme Court doesn't seem concerned about stopping the practice.

Westlaw's note:

The United States Supreme Court has denied certiorari in a case in which the Ninth Circuit held that environmental groups were entitled to a preliminary injunction barring the United States Forest Service from proceeding with logging projects in fire-damaged portions of the Eldorado National Forest. In approving the restoration projects, the Forest Service abused its discretion in its estimates of the likely tree mortality from the forest fires, the Ninth Circuit held. The Court also found that the Forest Service did not take the requisite "hard look" at the effects of the projects on the California spotted owl, or conduct population surveys for the hairy woodpecker and Williamson's sapsucker. The Forest Service charged in its petition for certiorari that the Court of Appeals erred by relying on declarations filed by the environmental groups in the district court, rather than confining its review to the administrative record, in determining that the groups had shown a likelihood of success on the merits. The Forest Service also claimed that the Ninth Circuit found that the groups could satisfy the "irreparable injury" prong of the test for obtaining a preliminary injunction by showing only a "possibility" of such injury. Finally, the Forest Service claimed that the Ninth Circuit had erroneously discounted competing interests in the use of forest lands under multiple use principles and the Forest Service's balance of those competing uses, in weighing the balance of harms and the public interest.

An Earth Day Celebration of Bill Rodgers

Of Salmon, the Sound, and the Shifting Sands of Environmental Law—A National Perspective With a Look Forward at the Career of Bill Rodgers and the Power of Ideas

EARTH DAY WEEKEND
April 20-21, 2007

The University of Washington School of Law Invites you to join us in celebrating the first 40 years of Bill Rodgers' teaching and scholarship at the UW April 20-21, 2007.

Confirmed Speakers include:

• Dean David Getches (University of Colorado, Boulder)
• Professor Hope Babcock (Georgetown Law Center)
• Professor John Bonine (University of Oregon)
• Professor Emeritus William Burke (University of Washington)
• Professor Donna Christie (Florida State University)
• Professor Holly Doremus (University of California, Davis)
• Professor Dale Goble (University of Idaho
• Professor Jamie Grodsky (George Washington University)
• Professor Oliver Houck (Tulane University)
• Professor Howard Latin (Rutgers School of Law, Newark)
• Professor A. Dan Tarlock (Chicago-Kent College of Law)

For two days in April, leading scholars, experts, colleagues and friends of Bill Rodgers from across the country will join together in Seattle to celebrate, and to discuss the direction and future of environmental law.

Agenda

Register Online

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