2019 NINTH CIRCUIT ENVIRONMENTAL REVIEW.

• Author: Clements, Hannah

Members

HARRISON BECK

ANNA LAIRD

JACQUELINE O'KEEFE

MEGHANN PAPSDORF ZACHARY SCHWARTZ

NINTH CIRCUIT REVIEW EDITOR'S NOTE 771 CASE SUMMARIES 773 I. ENVIRONMENTAL QUALITY 773 A. Clean Water Act 773 1. Pacific Coast Federation of Fishermen's Ass'ns v. Glaser, 945 F.3d 1076 (9th Cir. 2019) 2. Columbia Riverkeeper v. Wheeler, 944 F.3d 1204 (9th Cir. 2019) B. Clean Air Act 779 1. Rocky Mountain Farmers Union v. Corey, 913 F.3d 940 (9th Cir. 2019) C. Toxic Substances Control Act 782 1. Safer Chemicals, Healthy Families, v. U.S. Environmental Protection Agency, 943 F.3d 397 (9th Cir. 2019) D. Resource Conservation and Recovery Act 787 1. Center for Biological Diversity v. U.S. Forest Service, 925 F. 3d 1041 (9th Cir. 2019) E. Healthy Forests Restoration Act 790 1. Center for Biological Diversity v. Ilano, 928 F.3d 774 (9th Cir. 2019) II. ENERGY 792 A Energy Infrastructure 792 1. City of San Juan Capistrano v. California Public Utilities Commission, 937 F.3d 1278 (9th Cir. 2019) 2. Pit River Tribe v. U.S. Bureau of Land Management, 939 F.3d 962 (9th Cir. 2019) 3. Protect Our Communities Foundation v. Lacounte, 939 F. 3d 1029 (9th Cir. 2019) B. Energy Policy and Conservation Act 799 1. Natural Resources Defense Council v. Perry, 940 F.3d 1072 (9th Cir. 2019) C. Public Utilities Regulatory Policy Act 802 1. Californians for Renewable Energy v. California Public Utilities Commission, 922 F.3d 929 (9th Cir. 2019) 2. Winding Creek Solar LLC v. Peterman, 932 F.3d 861 (9th Cir. 2019) III. NATURAL RESOURCES 809 A Tribal Law 809 1. United States v. Washington, 928 F.3d 783 (9th Cir. 2019) 2. Dine Citizens Against Ruining Our Environment v. Bureau of Indian Affairs, No. 17-17320, 2019 WL 3404210 (9th Cir. 2019) 3. FMC Corp. v. Shoshone-Bannock Tribes, 942 F.3d 916 (9th Cir. 2019) 4. Muckleshoot Indian Tribe v. Tulalip Tribes, 944 F.3d 1179 (9th Cir. 2019) IV. MISCELLANEOUS 822 A. National Environmental Policy Act 822 1. Oregon Natural Desert Ass'n v. Rose, 921 F.3d 1185 (9th Cir. 2019) 2. WildEarth Guardians v. Provencio, 923 F.3d 655 (9th Cir. 2019) 3. Western Watersheds Project v. Grimm, 921 F.3d 1141 (9th Cir. 2019) B. Border Wall Litigation 832 1. Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019) 2. In re Border Infrastructure Environmental Litigation, 915 F. 3d 1213 (9th Cir. 2019) C. Freedom of Information Act 839 1. Sierra Club v. U.S. Fish & Wildlife Service, 925 F3d 1000 (9th Cir. 2019) 2. Animal Legal Defense Fund v. U.S. Department of Agriculture, 935 F. 3d 858 (9th Cir. 2019) D. Administrative Procedure Act 847 1. Center for Biological Diversity v. Bernhardt, 946 F.3d 553 (9th Cir. 2019) 2. San Francisco Herring Ass'n v. Department of the Interior, No. 18-15443, 2019 WL 7342999 (9th Cir. Dec. 31, 2019) CHAPTERS 855 Exploring the Indispensable Party: A Survey of Common Contexts 855 for Rule 19 Claims Jacqueline A. O'Keefe Locating Liability for Climate Change: A Comparative Analysis 885 of Recent Trends in Climate Jurisprudence Harrison Beck 2019 NINTH CIRCUIT INDEX OF CASES AND STATUTES 919 NINTH CIRCUIT REVIEW EDITOR'S NOTE

The 2019-2020 Ninth Circuit Environmental Review summarizes twenty-six decisions by the United States Court of Appeals for the Ninth Circuit issued between January and December 2019. All of the summarized opinions concern cases and questions of law impacting natural resources, energy, and the environment. Additionally, it features two chapters authored by Ninth Circuit Review members that discuss important topics stemming from recent cases out of the Ninth Circuit.

In the first chapter, Jacqueline O'Keefe broadly discusses Rule 19 of the Federal Rules of Civil Procedure and surveys common contexts where Rule 19 and indispensable party issues arise. In doing so, this chapter highlights how Rule 19 can be an important concern in environmental cases involving natural resources disputes, as demonstrated by the 2019 case from the Ninth Circuit, Dine Citizens Against Ruining our Environment v. Bureau of Indian Affairs. Overall, it provides helpful insight on what can seemingly be an unpredictable area of civil procedure.

In the second chapter, Harrison Beck writes about climate change jurisprudence and the widely observed case involving youth plaintiffs suing the federal government for its role in causing climate change that was dismissed by the Ninth Circuit in early 2020: Juliana v. United States. This chapter surveys and discusses various approaches to climate change litigation, focusing on the public nuisance and public trust doctrine theories of liability. It is a timely and important topic that highlights what a successful climate change litigation strategy might look like.

The Ninth Circuit Review is made possible through the hard work of its five members who are selected from the Environmental Law member base each year. The case summaries that appear here are the result of their commitment to ensuring that practitioners, advocates, fellow law students, and anyone with a related interest receive an accurate review of the state of environmental law in the Ninth Circuit.

Thank you for reading!

Hannah Clements

2019-2020 NINTH CIRCUIT ENVIRONMENTAL REVIEW EDITOR

CASE SUMMARIES

1. ENVIRONMENTAL QUALITY

   1. Clean Water Act

      1. Pacific Coast Federation of Fishermen's Ass'ns v. Glaser, 945 F.3d 1076 (9th Cir. 2019)

         The Pacific Coast Federation of Fishermen's Association, along with recreationists, biologists, and conservation organizations (collectively, Association), (1) filed a citizens suit against the United States Bureau of Reclamation and the San Luis & Delta Mendota Water Authority (collectively, defendants), (2) alleging that a drainage system managed by the Defendants discharged pollutants into the surrounding waters without a National Pollutant Discharge Elimination System (NPDES) permit, in violation of the Clean Water Act (3) (CWA). The United States District Court for the Eastern District of California entered judgment for defendants. (4) On appeal, the Ninth Circuit held that the district court properly interpreted the CWA's term "irrigated agriculture," but erred by placing the burden on the Association to show that the discharges were not covered by an exception, in interpreting "entirely" to mean "majority," and in striking the Association's seepage and sediment theories of liability from the Association's motion for summary judgment.

         The CWA requires that the NPDES permits be obtained prior to the discharge of pollutants from any point source to navigable waters of the United States. (5) The Association's claim arose from suspected discharges of pollutants, in violation of the NPDES requirement, from the Grasslands Bypass Project (the Project), jointly administered by the defendants, which collects the selenium and salt-rich water that is not absorbed by crops during irrigation and diverts it through a drainage system to surrounding waters. The Project includes the San Luis Drain (the Drain), which collects and discharges contaminated groundwater from irrigated lands adjacent and upstream of the Drain into nearby waterways, which both parties agree meet the "navigable waters of the United States" jurisdictional element of the CWA. (6)

         In November 2011, the Association filed their initial complaint alleging defendants violated the CWA by failing to obtain an NPDES permit for discharges from seepage into the Drain from adjacent lands, sediments from within the Drain, and groundwater discharges from lands underlying a solar project. The defendants argued that the discharges at issue did not require them to obtain an NPDES permit under an exception for discharges composed entirely of return flows from irrigated agriculture. (7) The district court granted Defendants' motion to dismiss, but allowed the Association to file their First Amended Complaint. The district court again entered judgment for defendants, holding that three of the Association's theories of liability in their motion for summary judgment did not arise from the allegations in their First Amended Complaint, and the Association's remaining claim was based on discharges from the solar facility that amounted to a minority of discharges from the Project.

         The Association appealed, contending that the district court erred by placing the burden of proof upon the Association to show the Drain's discharges were not exempt. The Association also argued the district court incorrectly interpreted what constitute discharges from irrigated agriculture and that the district court erred in holding the word "entirely" in the CWA exception means "most." On appeal, the Ninth Circuit reviewed de novo both district court's grant of summary judgment, as well as the district court's interpretation of the CWA and its implementing regulations.

         The Ninth Circuit first considered the burden of proof issue, holding that the defendants had the burden of establishing that the Project's discharges were composed entirely of return flows from irrigated agriculture. The court reasoned that to establish a violation of the CWA, a plaintiff must prove five jurisdictional elements, none of which includes proving the absence of an exception. Instead, once the plaintiff establishes the five elements, the defendant carries the burden to demonstrate the applicability of a statutory exception to the CWA. (8)

         Second, the Ninth Circuit analyzed the district court's interpretation of "irrigated agriculture." The court held that though the district court erred by first focusing on the statute's legislative history instead of beginning with the meaning of its text, it ultimately came to the correct result by interpreting the term "irrigated agriculture" broadly. The Ninth Circuit found that the plain meaning of the statutory text demonstrated that agriculture has a broad meaning, but went on to consider legislative history, as well. The court concluded that because Congress amended the CWA five years after its enactment to include an exception for discharges...