On Friday, the U.S. Court of Appeals for the District of Columbia Circuit vacated the Surface Transportation Board's ("Board's") authorization for the construction of a new railroad line in Utah that was designed to support new crude oil wells in the Uinta Basin. In reaching that outcome, the D.C. Circuit agreed with many of the points we raised in an amicus brief prepared on behalf of a coalition of Colorado cities, towns, and counties that opposed the railroad and the faulty environmental analysis underlying the Board's authorization. For instance, the Court rejected as "utterly unreasoned" the Board's decision to forgo an analysis of the increased wildfire risk in Colorado caused by increased rail traffic because that traffic is not a new kind of "ignition source." The Court's decision, a copy of which is available here, is a victory for our clients and all those communities situated along Colorado's I-70 corridor.
Eubanks & Associates Promotes Lizzie Lewis to Senior Associate!
Eubanks & Associates, PLLC is pleased to announce that it has promoted Lizzie Lewis to the role of Senior Associate. Lizzie has been and Associate with E&A since its formation in 2019, and prior to that was an Associate with our predecessor firm Meyer Glitzenstein & Eubanks LLP. Lizzie is a nationally recognized expert in ocean, marine, and coastal law, and she frequently teaches, writes, and litigates issues involving marine mammals, fisheries, and the integrity and health of the ocean ecosystem. She also specializes in federal litigation involving public lands management, endangered species and habitat conservation, river and wetland preservation, and open government law. Congrats, Lizzie!
Preliminary Injunction Halts Burning and Logging in the Hoosier National Forest
Today, on behalf of the Monroe County Board of Commissioners, Indiana Forest Alliance, Hoosier Environmental Council, and Friends of Lake Monroe, our firm obtained a preliminary injunction from the U.S. District Court for the Southern District of Indiana. The court’s order — found here — halts the U.S. Forest Service from commencing prescribed burns, herbicide application, and logging across nearly 15,000 acres of the Hoosier National Forest over the next two decades. The court found that our clients are likely to prevail on their claims that the Forest Service failed to adhere to the National Environmental Policy Act before approving this massive project, and it also affirmed that our clients were likely to suffer irreparable harm in the absence of injunctive relief. The court order will prevent significant, permanent harm to both Lake Monroe (which provides drinking water to nearly 150,000 Indiana residents) and to the public lands, wildlife, and recreational users of Indiana’s only national forest.
Photo courtesy of the Indiana Forest Alliance (https://indianaforestalliance.org/2018/05/04/what-you-can-do-to-fight-a-major-new-attack-on-the-hoosier-national-forest/)
Bill Eubanks receives major environmental law award
Here is a message we sent to our firm’s supporters today:
I am writing to express my immense gratitude for your collective role in helping me receive the Kerry Rydberg-Jack Tuholske Award for Excellence in Public Interest Environmental Lawyering at this year's Public Interest Environmental Law Conference. This award is considered one of the highest recognitions in our field, and I am deeply humbled to be a recipient. When accepting the award, I explained that it takes a village to successfully practice law in the public interest, and I am forever grateful to all of you -- clients, colleagues, and friends -- who have supported our firm (and our predecessor firm) for the past 30 years. I would not have received this award if you had not believed in and placed your trust in our firm to handle your important legal matters. I am truly honored to be able to work with each of you and to have you in our firm family. In reality, this award belongs to all of us, in recognition of our collective work to use the law today to make our planet better tomorrow. Thank you for continuing to work with and support our firm!
Park Advocates Urge EPA to Protect Big Cypress National Preserve from Oil and Gas Damage
On behalf of National Parks Conservation Association, we recently requested that the Environmental Protection Agency (“EPA”) exercise its authority under Section 404(c) of the Clean Water Act to restrict dredge and fill permits for future oil and gas exploration and extration activities in the fragile ecosystem of Florida’s Big Cypress National Preserve. If EPA agrees to do so, it would mark the first time EPA has exercised this authority within the borders of a national park. The letter contends that action by EPA is imperative to avoid unnecessary adverse effects to wetlands, hydrologic functions, many protected and other species, and wildlife habitat that are vital to the Greater Everglades Ecosystem. More information about the request, as well as a link to the letter itself, can be found here.
Photo Courtesy of National Park Service, https://www.nps.gov/bicy/planyourvisit/things2do.htm
DC Circuit Brief Filed to Force Analysis of Risks of Oil Train Derailment, Wildfires, and I-70 Closures in Colorado
On behalf of a coalition of Colorado cities, towns, and counties, our firm prepared an amicus brief in support of a challenge to the Surface Transportation Board's authorization for the construction of a new railroad line in Utah that is designed to support new crude oil wells in the Uinta Basin. Although the railroad would be constructed in Utah, 90% of the new rail traffic would pass through Colorado's otherwise quiet, yet treacherous, Central Corridor on heavy, mile-long tanker-trains that, in the Board's own estimate, will result in at least one accident per year. Despite this, the Board failed to meaningfully analyze whether its decision will create a higher risk of wildfires in the demonstrably fire-prone Central Corridor. The Colorado communities that will be most impacted by the Board's decision are understandably concerned and have asked the Board to take a "hard look" at the decision before it leaves the station. Additional details about the project can be found in the brief, a copy of which is available here.
Photo credit: Debris Flow Covering Eastbound Lanes of I-70 in Glenwood Canyon, July 3, 2021: Grizzly Creek Flooding and Debris Flows, U.S. GEOLOGICAL SURV. (Aug. 24, 2021), https://bit.ly/3yTRqdA
E&A Welcomes Jessica Townsend as a New Associate!
Eubanks & Associates, PLLC is thrilled to announce that Jessica Townsend recently joined the firm as an Associate. Jessica previously served as an attorney in Earthjustice’s Rocky Mountain Office in Denver, where she litigated cases involving public lands, wildlife, and climate change issues. You can read more about her background and interests here.
Challenge Filed to EPA Permit for Nation's First Offshore Aquaculture Project (Fish Farm)
Last week, on behalf of our clients Food and Water Watch, Recirculating Farms Coalition, Center for Food Safety, Sierra Club, Healthy Gulf, Suncoast Waterkeeper, and Tampa Bay Waterkeeper, we filed a lawsuit challenging the Environmental Protection Agency’s (“EPA”) issuance of a National Pollutant Discharge Elimination System (“NPDES”) Permit to Ocean Era, Inc., for the Velella Epsilon offshore aquaculture facility to be constructed and operated in federal waters of the Gulf of Mexico. Specifically, this lawsuit alleges that the EPA failed to comply with the National Environmental Policy Act (“NEPA”) when issuing the NPDES Permit. The Velella Epsilon is the first fish farm in federal waters off the contiguous United States, and is a pilot project expressly intended to demonstrate the feasibility of commercial offshore aquaculture and spur its further development in federal waters. Yet, in issuing this precedent-setting permit, the EPA failed to conduct a rigorous review of the environmental impacts associated with the construction and operation of an offshore aquaculture facility. Nor did the agency meaningfully examine the impacts of expanding offshore aquaculture in federal waters. EPA thus failed to take the hard look at environmental impacts that NEPA requires. A copy of the Petition can be found here.
Photo Credit: NOAA Fisheries
Major Tenth Circuit Win Clarifies Judicial Review of Clean Water Act Section 404 Permits
On behalf of six conservation organizations — Save The Colorado, Living Rivers, Waterkeeper Alliance, The Environmental Group, WildEarth Guardians, and Sierra Club — our firm obtained a major victory from the U.S. Court of Appeals for the Tenth Circuit, which has nationwide precedential implications. At issue in the case is the question of where litigants must bring challenges to Section 404 permits issued by the U.S. Army Corps of Engineers pursuant to the Clean Water Act (“CWA”), where the permit applicant must also separately secure a license from FERC under the Federal Power Act. Applying the applicable statutory terms and controlling authority, the Tenth Circuit held that challenges to CWA Section 404 permits must be pursued in federal district court (rather than federal courts of appeal). The court did not set forth a new test, but rather firmly cemented in a clear and direct way what is already unambiguous in the Federal Power Act’s own text and cases construing that statute. Indeed, the Tenth Circuit’s ruling is the only outcome that can be squared with Congressional intent and controlling precedent. The opinion can be found here.
Photo Credit: Colorado River Connected
Another Lawsuit Filed to Protect the Mount Graham Red Squirrel—United States’ Most Endangered Mammal
On behalf of our clients, the Center for Biological Diversity, Maricopa Audubon Society, and Mount Graham Coalition, we recently filed a lawsuit challenging the U.S. Forest Service and U.S. Fish and Wildlife Service’s chronic failure to protect and ensure the recovery of the Mount Graham Red Squirrel in violation of the Endangered Species Act (“ESA”). This suit represents another in a series efforts by our firm on behalf of these conservation organizations to obtain meaningful protections for the squirrel, which is now considered “the United States’ most endangered breeding population of terrestrial mammal.” Merrick et al., Endemic Population Response to Increasingly Severe Fire: A Cascade of Endangerment for the Mt. Graham Red Squirrel, 71 BioScience 161, 162 (2021). The lawsuit alleges numerous violations of the ESA that arise from the federal government’s authorizations for vacation homes and a summer camp which are located in the scant remaining habitat for this critically imperiled species. For example, despite previously acknowledging the necessity of stringent setbacks around the squirrels’ middens (i.e., the focal points of the squirrels’ territories), the Defendant agencies have now decided—without explanation—to allow the species to be harassed within these important zones. The government’s disregard for the species is further evident in the terms of the Biological Opinions, which have been structured to wash the government's hands of any meaningful or transparent oversight in the future. More details about the plight of this species and the scope of the lawsuit can be found in the copy of the complaint—available here.
Objections Filed Against Major Logging Proposal in Monongahela National Forest
On behalf of our clients Save the Blackwater and the Center for Biological Diversity, we submitted objections to the U.S. Forest Service’s proposed Upper Cheat River Project, which would authorize timber harvesting and proscribed burning on over 4,300 acres of the Monongahela National Forest. The Monongahela encompasses one of the most ecologically diverse areas in the United States and provides habitat for several federally-listed endangered and threatened species, including the threatened Northern long-eared bat (which has been recently proposed for uplisting from threatened to endangered under the Endangered Species Act (ESA)) and the endangered Indiana bat. The Forest Service plans to conduct logging and burning in the watershed of Upper Cheat River. However, the Forest Service's Final Environmental Assessment (EA) for the proposed project fails to seriously consider how the agency's actions may harm the environment, including by contributing to greenhouse gas emissions, contributing to erosion and slope instability, and degrading or destroying the habitat of vulnerable species. Most glaringly, the Forest Service failed to consider any alternatives to the proposed project and in fact, refused to consider the no action alternative, which is required in any environmental analysis under the National Environmental Policy Act (NEPA). As a result, the Final EA effectively considers the environmental impacts of the project in a vacuum, depriving the agency and the public of the context necessary to meaningfully evaluate whether the purported benefits of the project outweigh the adverse environmental effects. The objections also explain that a full Environmental Impact Statement is required to analyze the Upper Cheat River Project's significant impacts on the Northern long-eared bat. The Forest Service must delay a final decision on the proposed project until it conducts a legally-compliant NEPA process that takes the required hard look at the impacts of the project and its alternatives. A copy of the objections can be found here.
Photo Credit: Kelly Bridges, U.S. Forest Service
Major Victory to Remove Trespass Cattle from the San Pedro River National Conservation Area
In response to an Endangered Species Act lawsuit our firm filed in 2021 on behalf of the Center for Biological Diversity and Maricopa Audubon Society, the Bureau of Land Management recently agreed to settle the case by providing significant protections for the highly endangered plant species known as the Huachuca water umbel. This major environmental victory will also conserve other imperiled wildlife and plant species in the San Pedro Riparian National Conservation Area. A press release and link to the settlement can be found here.
E&A argues at the 10th Circuit to Preserve Judicial Review of Section 404 Permits
Earlier this week, Bill Eubanks of Eubanks & Associates, PLLC represented six conservation groups in a Tenth Circuit oral argument seeking to ensure that federal district courts may review the legality of Clean Water Act permits issued by the U.S. Army Corps of Engineers under Section 404. The district court held that it lacked jurisdiction to hear this challenge, due to the intersection of the Corps’ Section 404 permit with a separate license issued by FERC under the Federal Power Act (which vests judicial review in federal courts of appeal). The outcome of this appeal will have far-reaching implications for judicial review of Section 404 permits in other contexts. The link to the oral argument can be found here.
NEPA Suit Filed Against the Postal Service on Behalf of UAW
On behalf of our client, the International Union, Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”), and in cooperation with the Natural Resources Defense Council, we recently filed a lawsuit challenging the United States Postal Service’s failure to comply with the National Environmental Policy Act (“NEPA”) when considering its plan to acquire a fleet of new vehicles. The lawsuit alleges that the Postal Service failed to take the hard look that NEPA requires at obvious environmental impacts and alternatives to reduce those impacts. For example, despite knowing that these vehicles would be produced at a new—and likely non-unionized—facility in South Carolina, USPS never analyzed any environmental or socioeconomic impacts associated with where or how its new vehicles would be built. Likewise, the Postal Service refused to consider any alternatives proposed by the public that would be better for the environment and workers. A copy of the complaint can be found here.
Court Invalidates Forest Service Logging and Burning Plan
In a victory for our clients—the Monroe County Board of Commissioners, Indiana Forest Alliance, Hoosier Environmental Council, and Doctor Paul David Simcox—the U.S. District Court for the Southern District of Indiana invalidated a plan by the United States Forest service (“USFS”) to log and burn thousands of acres in the Hoosier National Forest. The court found that USFS violated the National Environmental Policy Act by failing to consider the impacts from its actions on Lake Monroe, which is a unique and irreplaceable resource that serves as the only source of drinking water for over 120,000 people. A copy of the court’s ruling can be found here.
Lizzie Lewis Argues D.C. Circuit Case Regarding Marine Mammal Necropsy Reports
Today, on behalf of leading marine mammal scientists and three animal welfare and conservation organizations, Lizzie Lewis of Eubanks & Associates presented oral argument to the U.S. Court of Appeals for the D.C. Circuit. Last year, a federal district court concluded that our clients lacked standing to raise their challenge to NMFS’s new policy in 2017 to no longer enforce industry compliance with longstanding permit conditions under the Marine Mammal Protection Act, which have for decades required NMFS to collect necropsy reports once cetaceans in captivity die and then, in turn, disclose such information to the public through the Freedom of Information Act. We have argued that the district court ruling contravenes binding D.C. Circuit precedent, which recognizes the ability of organizations and individuals with specific and particularized interests to challenge agency actions and policies that harm their concrete interests in the information sought. An audio link to the oral argument can be found here.
Photo courtesy of NOAA Fisheries: https://www.fisheries.noaa.gov/species/killer-whale
Suit Filed in Arizona to Conserve the Imperiled Huachuca Water Umbel
Yesterday, on behalf of the Center for Biological Diversity and the Maricopa Audubon Society, we filed a lawsuit challenging the failure of the Bureau of Land Management (“BLM”) to conserve the Huachuca Water Umbel, a highly endangered plant. The Umbel was once widespread in the southwest, but livestock grazing and human settlement have eradicated most of its habitat. Today, the San Pedro Riparian National Conservation Area—which Congress specifically mandated BLM to “conserve, protect, and enhance”—hosts the largest remaining population of Umbels and most of the species’ critical habitat. However, BLM has failed to take basic, common-sense steps protect the Umbel, or the Conservation Area, such as maintaining a boundary fence to protect the species from trespass livestock. As a result of BLM’s failure to protect the species, its habitat is growing badly degraded and it is vanishing from the heart of its scant remaining range. Our lawsuit alleges that BLM’s failure to protect and restore the Umbel violates its duties under the Endangered Species Act. A copy of the Complaint can be found here.
*Image courtesy of U.S. Fish & Wildlife Service
Court Slams Forest Service's Authorization of Artificial Elk Feeding
For the second time in three years, the U.S. District Court for the District of Wyoming found the U.S. Forest Service’s authorization of artificial winter feeding of elk in the Bridger-Teton National Forest — which unnaturally concentrates elk and increases the spread of lethal Chronic Wasting Disease — in violation of federal environmental laws. The practice of artificial feeding has been occurring for more than 100 years, but the overwhelming scientific consensus is that this practice is outdated and can cause catastrophic damage to elk populations and the Greater Yellowstone Ecosystem of which the elk are a primary component. In its ruling, the court determined that the the arguments made by the agency in defending its decision were “unpersuasive,” “implausible,” and “unreasonable.” Our firm represented Western Watersheds Project, Sierra Club, Wyoming Wildlife Advocates, and the Gallatin Wildlife Association in this case. In 2018, we represented the same organizations in overturning the Forest Service’s prior authorization of artificial feeding in the same national forest.
Second Circuit Agrees With FOIA Arguments Advanced in Amicus Brief
The U.S. Court of Appeals for the Second Circuit recently issued a ruling that adopted various arguments advanced in an Amicus Curiae brief that we submitted on behalf of our clients Animal Welfare Institute and Farm Sanctuary. The Second Circuit held that the Freedom of Information Act authorizes courts to require federal agencies to post certain types of information online for the public, instead of merely providing records to an individual requester. On behalf of our clients, we have sued the U.S. Department of Agriculture to compel it to make publicly available various records regarding the enforcement of laws designed to protect humans from unsafe foods by, in part, protecting animals from inhumane conditions. The Second Circuit’s ruling relied in part on our victory before the U.S. District Court for the Western District of New York. Additionally, the Second Circuit adopted our argument that a contrary ruling would inappropriately shift the burden of making records available to the public away from federal agencies and onto organizations such as our clients. You can read the full opinion here.
Bill Eubanks quoted in Bloomberg Law article
Firm owner Bill Eubanks was quoted in a Bloomberg Law article discussing the “highly controversial” factor under NEPA’s implementing regulations that requires an Environmental Impact Statement (“EIS”) when, among other things, governmental or other subject matter experts dispute an agency’s conclusion about the significance of impacts or the methodology for assessing the relevant impacts. The U.S. Court of Appeals for the District of Columbia Circuit recently required an EIS on this basis for the Dakota Access Pipeline, which built on our firm’s groundbreaking victory for National Parks Conservation Association in March 2019 establishing the first-ever precedent in the D.C. Circuit mandating an EIS based on the “highly controversial” test. The court’s Dakota Access Pipeline ruling clarified that to be “highly controversial” for purposes of NEPA, the criticism or dispute need not come from sister agencies but instead may come from any stakeholder with relevant expertise — e.g., tribes, nonprofit organizations, and individuals. Together, the two rulings create a strong foundation for requiring agencies to prepare EISs when disputes exist regarding the methods for assessing impacts and/or the ultimate significance of such impacts. Whether this mandate will be watered down by the Trump Administration’s attempt to rewrite NEPA’s regulations is unclear (although unlikely).