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The NAM filed an amicus brief in support of en banc review by the U.S. Court of Appeals for the Fourth Circuit to reverse a panel holding that invalidated a federal permit for a major natural gas transmission pipeline that crosses U.S. Forest Service lands. An environmental group sued the U.S. Forest Service to invalidate its permit allowing the Atlantic Coast Pipeline to cross beneath the Appalachian Trail hiking route. A panel of the Fourth Circuit held that the Mineral Leasing Act does not allow agencies to grant rights-of-way for pipelines to cross any stretch of the Appalachian Trail; rather, such approvals must come from a majority vote of the U.S. congress. This holding effectively converts the Appalachian Trail into a 2,200-mile barrier to pipeline construction from Maine to Georgia. The court’s reasoning could also be applied to any one of the dozens of pipelines that currently cross beneath the trail because such pipelines require periodic permit renewals. In support of the intervenor Atlantic Coast Pipeline’s petition for en banc review by the Fourth Circuit, the NAM filed an amicus brief that explained the legal flaws in the panel’s reasoning and highlighted the important benefits that pipelines provide for manufacturers and the national economy. On February 25, 2019, the Fourth Circuit denied en banc review.

In March, 2013 the Supreme Court agreed to review a case in which an environmental group challenged the U.S. Forest Service analysis of the environmental impacts of a revision to its forest plan. The forest plan is a policy that by itself is not an agency action, but is used to inform project-specific decision making, which is agency action. The Forest Service prepared an Environmental Impact Statement (EIS) at the time of the revision as required by the National Environmental Policy Act (NEPA). The environmental group alleged that the EIS for the revised forest plan failed to consider the impact of the plan on fish and amphibians in affected aquatic habitat. The court of appeals rejected the environmental group’s allegation that the EIS analysis of effects on amphibians was inadequate, but held that the EIS ultimately did not satisfy NEPA because it contained no discussion of the effects on particular fish species. The court of appeals went on to explain that NEPA requires programmatic and project-specific EISs as soon as it is reasonably possible to do so.

This case presented ripeness and standing issues for the Court to consider. The case may not be ripe because the forest plan by itself was not an agency action. If the Court ruled on the ripeness doctrine, it could have required that the environmental group challenge only project-specific agency actions that present a controversy ripe for judicial resolution, meaning that only the actions informed by the forest plan could be challenged, not the entire forest plan. Such individual project challenges would require significant additional litigation resources from the groups. As for standing, the Court could have considered whether the environmental groups make use of the resources sufficiently to have standing to challenge the forest plan, or alternatively the project-specific actions pursuant to the plan.

The case also raised the question of whether it is possible to evaluate every potential environmental impact from the revision of the forest service plan at the time the amendments were adopted. The relevance of whether all such impacts are reasonably foreseeable at the time of the revision is lessened because any action pursuant to the plan is subject to an EIS before any individual project is allowed to go forward. However, environmental groups are likely to claim “death by a thousand cuts” to the environment if they cannot challenge programs or policies like the forest plan, on the grounds that individual actions may cumulatively have an impact outside of the scope of narrow challenges to project-specific actions.

This case was important for manufacturers and other businesses that rely on permits or licenses from government agencies to pursue their endeavors efficiently and with legal certainty.

On 6/17/13, the Court dismissed the case as moot. No decision on the merits of the appeal was issued.

For many government projects involving manufacturers, the National Environmental Policy Act requires federal agencies to evaluate the environmental impact of their actions, and these evaluations are increasingly challenged in court by environmental groups. In such litigation, courts usually allow manufacturers to intervene in the suits to help defend the agency’s actions and to help the court understand the impact of the case on their business. If environmental analyses are deficient, the projects cannot proceed.

This case involves a Ninth Circuit procedure that generally bars such intervention. The practice, informally known as the “federal defendant rule,” is based on the premise that only the federal government can be held liable for failing to perform environmental assessments, and that private parties do not have a significant protectable interest in the litigation.

The NAM and other groups filed an amicus brief 10/21/2010 arguing that the rule should be abandoned. Private parties clearly have a substantial interest in defending agency actions under NEPA, and Federal Rules of Civil Procedure 24(a) allows such a party to intervene. We cited many examples where private parties have such interests, including development projects that involve work in wetlands, the construction of natural gas pipelines or nuclear power plants, and the development of genetically engineered crops.

Our concern is not just about the application of the federal defendant rule to projects subject to NEPA, but also to the fact that it has been extended to other statutes, including the Endangered Species Act, the National Forest Management Act, and the Plant Protection Act. Intervention should be allowed to parties with significant interests in the outcome of such litigation. Often, private parties have massive investments at stake.

On 1/14/2011, the Ninth Circuit rejected the federal defendant rule and said that lower courts should not automatically reject non-federal parties from intervening in litigation at the merits stage, or liability phase, of a law suit. Instead, courts should consider whether the party has a legally protectable interest in the litigation and a connection between that interest and the claims in the case. The decision was en banc, involving 11 of the judges in the Ninth Circuit, and provides great assurance that the federal defendant rule will no longer be used in that circuit. Thirty-seven amicus groups urged this result, and only one other federal circuit court of appeals hangs on to the federal defendant rule.