Beveridge & Diamond

Ninth Circuit Removes Barrier to Intervention in NEPA Cases

Beveridge & Diamond, P.C., January 20, 2011

In a decision that will facilitate intervention by interested parties in National Environmental Policy Act (“NEPA”) cases in Western states, the U.S Court of Appeals for the Ninth Circuit on January 14, 2011 abandoned a rule that had stood as a barrier to intervention for more than two decades.  The Ninth Circuit’s so-called “federal defendant” rule, which has been in place since 1989, categorically prohibited private parties and state and local governments from intervening of right as defendants to litigate the merits of NEPA challenges brought against federal agencies.  In The Wilderness Society v. U.S. Forest Service, No. 09-35200 (9th Cir. Jan. 14, 2011), after weighing the positions of the parties and the 37 groups of amici that filed briefs, the Court did away with the controversial rule.

The Ninth Circuit originally adopted the federal defendant rule after concluding that no parties other than the federal agency defendants in NEPA suits have the “significantly protectable” interest required to intervene of right under Federal Rule of Civil Procedure (“FRCP”) 24(a)(2) because NEPA is a procedural statute that binds only the federal government.  In abandoning the rule, however, the Court declared that the rule in fact is “at odds with” FRCP 24(a)(2), the standards the Court applies in all other intervention of right cases, and the standards of virtually every other federal Court of Appeals.  Slip Op. at 796, 803.  The Court explained that such a bright-line rule is inconsistent with the text of FRCP 24(a)(2), which requires only “an interest relating to the property or transaction that is the subject of the action.”  By categorically providing that private parties lack a significantly protectable interest in NEPA compliance actions, the Court concluded, the federal defendant rule “mistakenly focuses on the underlying legal claim instead of the property or transaction that is the subject of the lawsuit.”  Slip Op. at 800-01.  Such a principle has no support in law, according to the Court.

The Ninth Circuit reasoned that the usual standards applicable in all other cases for intervention of right under Rule 24(a)(2) should apply in NEPA cases as well.  To that end, the Court stated that “[t]o determine whether putative intervenors demonstrate the ‘significantly protectable’ interest necessary for intervention of right in a NEPA case, the operative inquiry should be ‘whether the interest is protectable under some law’ and whether ‘there is a relationship between the legally protectable interest and the claims at issue.’”  Id. at 804.  A candidate for intervention generally will satisfy these standards if “it will suffer a practical impairment of its interests as a result of the pending litigation.”  Id.

The Ninth Circuit’s abandonment of the federal defendant rule is a welcome development for private parties whose interests are implicated by NEPA litigation in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.  By harmonizing the intervention of right standards in NEPA cases with those in other cases, the Court’s ruling makes it easier for private parties in Western states to protect their interests by participating in litigation on the side of federal agencies.  In many cases, intervenors will provide important context for the presiding court regarding the interests at stake and the implications of challenges brought under NEPA.  In addition, intervening parties will often be more aggressive than the government in defending certain federal agency actions in the face of NEPA challenges.

Also on January 14th, the White House Council on Environmental Quality (“CEQ”) issued guidance designed to make federal agencies more accountable for mitigation measures they identify in conducing environmental impact reviews under NEPA.  Beveridge & Diamond’s analysis of the CEQ guidance can be found here.   

For additional information about the Ninth Circuit’s recent decision or related issues, please contact Dan Krainin ( or (212) 702-5417) or Parker Moore ( or (202) 789-6028).       

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