Another Rule Bites The Dust: The Ninth Circuit Abandons the “Federal Defendant” Rule in NEPA Cases

Thanks to the Ninth Circuit Court of Appeals, gone are the days when private parties and state and local governments were prohibited from intervening on the liability or merit stage of claims brought under the National Environmental Policy Act of 1969 (“NEPA”). CEQA GavelNEPA, much like it’s California equivalent, (California Environmental Quality Act), requires that federal agencies consider the environmental impacts of their proposed actions and reasonable alternatives to those actions by preparing an Environmental Impact Statement. The so-called “federal defendant” rule which categorically barred intervention by right in NEPA cases has been abandoned by the court in its unanimous, en banc (all 11 judges, rather than it’s normal 3) Wilderness Society v. United States Forest Service decision.

Previously, the court had reasoned that NEPA is a procedural statute that binds only the federal government and, therefore, no other party has a “significantly protectable” interest, as is required by Federal Rule of Civil Procedure 24(a)(2) (the federal intervention rule). In the wake of this recent decision, however, the Ninth Circuit directed courts to perform a case-by-case inquiry as to whether the “interest is protectable under some law” and whether “there is a relationship between the legally protected interest and the claims at issue.”

The court’s reasoning was four-fold. First, the now-debunked “federal defendant” rule was found to be inconsistent with the text of Federal Rule 24(a)(2) which requires only “an interest relating to the property or transaction that is the subject of the action” rather than focusing on the underlying legal claim. Second, the old rule was at odds with the policy behind intervention in all other cases which calls for “practical and equitable considerations” and broad interpretation in favor of intervenors with the goal of “disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” Third, the court wisely noted that the “federal defendant” rule was not applied in cases asserting violations of any other environmental statutes besides NEPA… so why here? Finally, casting aside our mothers’ warnings of following our friends (off a bridge or otherwise…), the court noted that the “federal defendant” rule is inconsistent with all but one other circuit that has addressed the issue.

It will be interesting to see what potential effect of this case will win out – the goal behind the right of intervention to increase judicial efficiency by disposing of multiple lawsuits by involving as many effected parties as possible OR the added complexity and burden of increasing the number of litigants in each NEPA case going forward.