Thursday, May 30, 2019

Ninth Circuit Lets Environmental "Citizen Suit" Move Forward

The Ninth Circuit ruled today that a lower court had jurisdiction over environmental organizations' lawsuit against the United States Forest Service under the "citizen suit" provision in the Resource Conservation and Recovery Act.

The ruling reverses the lower court decision on this point and remands the case for further proceedings related to the merits.

The case, Center for Biological Diversity v. United States Forest Service, started when the Center and others sued the USFS for its failure to address the use of lead ammunition by hunters in Arizona's Kaibab National Forest. According to the plaintiffs, scavenger species, including the California condor, suffer from lead poisoning after they ingest lead ammunition left in animal carcasses by hunters. The Center sought declaratory and injunctive relief pursuant to the RCRA's citizen-suit provision.

The district court dismissed the case, ruling that it amounted to a request for an advisory opinion. The Ninth Circuit reversed.

The Ninth Circuit held that the case was not an advisory opinion. The court said that the Center's challenge presents a "genuine adversary issue between the parties," and that "a ruling in the Center's favor would require USFS to mitigate in some manner--not necessarily by banning the use of lead ammunition in the Kaibab--the harm caused by spent lead ammunition, thereby leading to a change in USFS's operation of the Kaibab."

The court rejected the lower court's conclusion that any judicial ruling would amount only to a recommendation. That's because the RCRA specifically grants the courts jurisdictions over this type of claim and relief, including jurisdiction "to restrain any person who has contributed or who is contributing to [a substantial endangerment to health or the environment], to order such person to take such other action as may be necessary, or both." The court also rejected the lower court's conclusion that any order "would be an improper intrusion into the domain of the USFS." The court said that this is exactly what the RCRA authorizes, and that this position, if accepted, "would preclude courts from issuing injunctions against expert administrative agencies, which, of course, we regularly do."

The court also rejected the USFS's argument that the courts should "declin[e] jurisdiction out of deference to the policy choices of the other branches of the federal government." The court said that the RCRA grants it jurisdiction, and that it has a "virtually unflagging obligation . . . to exercise the jurisdiction given [it]."

The case goes back to the district court for further proceedings related to the merits.

https://lawprofessors.typepad.com/conlaw/2019/05/ninth-circuit-lets-environmental-citizen-suit-move-forward.html

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