Seila Law LLC v. Consumer Financial Protection Bureau: The Supreme Court Considers Whether an Independent Agency with a Single Director Who Can Be Removed Only “For Cause” is Constitutional

RODGER CITRON

Rodger Citron, Associate Dean for Research & Scholarship and Professor of Law at Touro Law, comments on a case in which the U.S. Supreme Court will hear argument this week that presents the question whether an independent agency with a single director who can be removed only “for cause” violates the separation of powers principle enshrined in the Constitution. Citron notes that the decision to hear the case is unusual in that there is no conflict among the federal appeals courts, but he points out that that the government’s support of the cert. petition and then-Judge Brett Kavanaugh’s dissent on the issue when it came before the D.C. Circuit likely helped the present case come before the Court.

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High Country Conservation v. United States Forest Service

Docket: 18-1374

Opinion Date: March 2, 2020

Judge: Carlos F. Lucero

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law

The Colorado Roadless Rule, which the Forest Service adopted in 2012, prohibits road construction in designated areas but included an exception for the North Fork Coal Mining Area (the “North Fork Exception”). In prior litigation, a district court concluded agency decisions violated the National Environmental Policy Act (“NEPA”) and the Administrative Procedure Act (“APA”), and vacated the North Fork Exception. Following these decisions, the Forest Service prepared a Supplemental Final Environmental Impact Statement (“North Fork SFEIS”) and readopted the Exception, Roadless Area Conservation. Mountain Coal Company, LLC, submitted lease modification requests in connection with coal leases in the area. In response, the Forest Service and the Bureau of Land Management (“BLM”) issued a Supplemental Final Environmental Impact Statement (“Leasing SFEIS”) and approved the requests. In the lawsuit that followed, a coalition of environmental organizations alleged the agencies violated NEPA and the APA by unreasonably eliminating alternatives from detailed study in the North Fork SFEIS and the Leasing SFEIS. The district court rejected these challenges. After review, the Tenth Circuit Court of Appeals reversed as to the North Fork SFEIS, holding that the Forest Service violated NEPA by failing to study in detail the “Pilot Knob Alternative” proposed by plaintiffs. Accordingly, the matter was remanded to the district court with instructions to vacate the North Fork Exception. With respect to the Leasing SFEIS, the Tenth Circuit held NEPA did not require consideration of the “Methane Flaring Alternative” proposed by plaintiffs.