In an article published by the Environmental Law Reporter, Stoel Rives attorney Jeffrey Leppo provides strategies for one of the most popular, but seldom successful, forms of litigation – challenging federal agency environmental decisions.
He cites lessons from four case studies involving the oil, gas and commercial fisheries industries.
Leppo points out that record review challenges in the environmental context are arguably among the least frequently won or favorably settled federal cases. He argues that only plaintiffs able to demonstrate commitment and stamina, significant forethought and case-specific procedural and substantive strategies can hope to prevail in such challenges.
In the article, Leppo describes the pros and cons of such challenges. On the pro side, he notes that record review cases do not require witnesses and do not allow for discovery, making them radically more predictable than most litigation and theoretically less costly. However, just about everything else is "bad news and ugly" for those challenging agency decisions, he argues.
For example, plaintiffs must contend with a standard of review that provides great deference to agency judgments, while the absence of discovery both insulates agency decision-makers from direct inquiry and severely limits the ability of challengers to either elaborate or develop new contentions after a final agency decision has been made.
He turns to four recent case studies of successful challenges to reveal insights into successful litigation strategies:
- Choice of venue may not win a challenge, but it can virtually ensure defeat
- Strategies that constrain the role of intervenors on behalf of the agency can help save both time and expense
- Scientific or technical disputes are most susceptible to agency arguments grounded in deference
- Procedural arguments, such as NEPA claims, are easiest to win, but often a pyrrhic victory
- Most run-of-the-mill record review challenges will be won by the agency, plain and simple
Read the full article (PDF)
"Litigating Against Government Agencies: Case Studies in Challenges to Agency Decisions Under Federal Environmental Statutes" was published by the Environmental Law Reporter, July 2013