Court Reconsiders Policy on NEPA Suit Intervenors

     (CN) – The full 9th Circuit on Friday abandoned its more than 20-year-old blanket rule prohibiting private citizens and local governments from intervening as defendants in National Environmental Policy Act lawsuits.




     After following the policy since 1989, the federal appeals panel in Pasadena found that the so-called “federal defendant” rule runs against the normal theory and practice of intervention.
     “In applying a technical prohibition on intervention of right on the merits of all NEPA cases, it eschews practical and equitable considerations and ignores our traditionally liberal policy in favor of intervention,” Judge Barry G. Silverman wrote for the 11-judge panel. “It also fails to recognize the very real possibility that private parties seeking to intervene in NEPA cases may, in certain circumstances, demonstrate an interest ‘protectable under some law,’ and a relationship between that interest and the claims at issue.”
     Rather than automatically preventing intervention in future NEPA cases, Silverman added that the court will weigh would-be intervenors’ rights on a case-by-case basis.
     The panel questioned its use of the federal defendant rule after several motorized-vehicle recreation groups sought to intervene as defendants in a NEPA complaint filed in Idaho. Two conservation groups claimed that the U.S. Forest Service had violated NEPA when it opened more than 1,000 miles of roads in the Sawtooth National Forest to vehicles.
     The district court refused to allow the recreation groups to intervene as defendants, citing the 9th Circuit’s long history of barring defendant intervenors in NEPA cases.
     The full circuit on Friday reversed the district court’s ruling and remanded the issue.
     “We no longer see any principled reason to categorically prohibit intervention of right on the merits of NEPA actions while approving of it in cases challenging the federal government’s compliance with other environmental and administrative statutes,” Silverman wrote. “Given the many different scenarios in which NEPA claims arise, courts should be permitted to engage in the contextual, fact-specific inquiry as to whether private parties meet the requirements for intervention of right on the merits, just as they do in all other cases.”
     Dozens of conservation, recreation and commercial groups, as well as state and local governments and American Indian tribes had urged the panel to abandon the rule, Silverman wrote, adding that it is also “out of step with all but one of our sister circuits that have addressed whether private parties may intervene of right on the merits of NEPA claims.”

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