COURT ORDERS FURTHER NEPA REVIEW FOR CONTROVERSIAL PURPLE LINE PROJECT

The U.S. District Court for the District of Columbia has again agreed with our arguments, on behalf of Friends of the Capital Crescent Trail and local activists, that the controversial Purple Line – an environmentally destructive and massively expensive developer-driven light rail project that would be built in Montgomery and Prince George’s Counties, Maryland – must be analyzed in a Supplemental Environmental Impact Statement (“SEIS”) before it may move forward.  Because of the enormous problems and declining ridership plaguing the Metrorail system in the D.C. area – ridership on which the Purple Line is heavily dependent for its justification – the Court has held that the Federal Transit Administration must consider whether other previously rejected alternatives (such as improved bus service) that may be far less environmentally destructive, as well as far less expensive, should now be reconsidered.  If the Purple Line does ultimately move forward, it will destroy many acres of forests, degrade area water ways, harm resident wildlife (including imperiled species) and historic sites, among many other adverse impacts.  A copy of the Court’s ruling that an SEIS must be prepared is here.

D.C. CIRCUIT ORDERS DISCLOSURE OF SMOKING HAZARDS

In our long-running battle with the tobacco industry over its massive, decades-long conspiracy to hide from the public the health hazards and addictiveness of smoking, the U.S. Court of Appeals for the D.C. Circuit has ordered the tobacco companies to move forward expeditiously with “corrective statements” about the dangers of their products.  In 2006, the U.S. District Court for the District of Columbia, after finding that for decades the companies had violated anti-racketeering laws and deceived the American public about the egregious health risks of cigarettes and the purposeful marketing of them to children, ordered the companies, through television and newspaper ads and others means, to issue “corrective statements” concerning the health effects and addictiveness of smoking and second-hand smoke, the companies’ purposeful manipulation of cigarettes to maximize their addictiveness, and the lack of any health benefits from low-tar or “light” cigarettes.  Since then, the industry has fought tooth and nail to keep the disclosures from becoming a reality.  But now, after the latest ruling by the D.C. Circuit on April 25, it is clear that the Court’s patience is running out.  While ordering what the Court characterized as “minor revisions” in preambles to the statements, the D.C. Circuit said that the “district court can simply issue an order requiring the corrective statement remedy to go forward.”  In the litigation, we represent public-health organizations that were allowed to intervene in the case to ensure that the public’s interests are being protected, including the Campaign for Tobacco-Free Kids, the American Cancer Society and the American Heart Association.  A copy of the Court’s ruling is here and a press release issued by the Campaign for Tobacco-Free Kids is here.

Ninth Circuit Rejects Efforts by Livestock Owners, Nevada Counties and Nevada Farm Bureau Federation to Remove Wild Horses From Public and Private Lands in Nevada

In a significant victory for our clients, the American Wild Horse Campaign and two individuals who visit and photograph wild horses in Nevada, the U.S. Court of Appeals for the Ninth Circuit today affirmed the dismissal of an effort by the livestock industry, led by the Nevada Association of Counties and the Nevada Farm Bureau Federation, to compel the Bureau of Land Management to remove wild horses from the range throughout the state of Nevada. The Ninth Circuit found that, as we successfully argued to the district court, the lawsuit impermissibly sought to have the court take over “virtually the entire federal wild horse and burro management program in Nevada” at the behest of a single industry.  Members of the livestock industry have brought similar challenges in other states, and today’s victory will help to prevent an industry takeover of wild horse management and ensure that these federally protected animals remain wild, free-roaming and protected on public lands.  A copy of the decision can be found here.

COURT REVERSES REFUSAL TO LIST PYGMY-OWL, REJECTS HARMFUL ESA POLICY

In a case we brought on behalf of the Center for Biological Diversity and Defenders of Wildlife, the federal district court in Arizona has issued an important ruling rejecting the Fish and Wildlife Service’s (FWS) refusal to list the cactus ferruginous pygmy-owl, one of the world’s smallest owls, as an endangered or threatened species, based on the agency’s unlawfully narrow interpretation of its listing duties under the Endangered Species Act (ESA).  The ESA requires that species be listed if they are endangered or threatened throughout “all or a significant portion” of their range.  Although the pygmy-owl is gravely imperiled in much of its range in Arizona and northern Mexico, FWS refused to list the species based on a policy that, in effect, equates a “significant portion” with the entirety of the species’ range.  If this approach had been applied in the past, many of the most iconic species that have received critical protection under the ESA – such as the grizzly bear, bald eagle, and wolf – would never have been protected in the U.S. portions of their range.  The Arizona district court has emphatically rejected that self-defeating approach to the Act on the grounds that it violates the plain language of the ESA and undermines the important conservation purposes of the law to protect and bring about the recovery of species such as pygmy-owl.  A copy of the Court’s ruling can be found here and a copy of the Center for Biological Diversity’s press release can be found here.

LAWSUIT FILED TO HALT WIND PROJECT IN ESSENTIAL BIRD HABITAT IN OHIO

On behalf of the American Bird Conservancy (ABC) and the Black Swamp Bird Observatory, we have filed a lawsuit in federal district court in Washington, D.C., challenging a wind power project that is proposed to be built by the Air National Guard on the shore of Lake Erie, in the midst of a globally important corridor for migratory birds, including several endangered and threatened species.  The project is also slated to be built in close proximity to a number of active eagle nests.  Our lawsuit charges that the project violates the Endangered Species Act, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and the National Environmental Policy Act.  A copy of ABC’s press release concerning the case can be found here and the Complaint can be found here.

Challenge to FTC’s Decisions Allowing Used Cars to be Sold as “Safe” When They are Subject to Safety Recalls

Today we filed a case in federal district court for D.C. challenging recent decisions by the Federal Trade Commission (FTC) to allow used car dealers to advertise and sell “Certified” used cars as “safe,” “repaired for safety,” and “subject to rigorous inspection” when such cars are subject to pending federal safety recalls, without repairing the cars prior to sale, as long as the dealers disclose that the vehicles “may” be subject to a safety recall.  We represent Consumers for Auto Reliability and Safety, the Center for Auto Safety, and U.S. Public Interest Research Group, representing tens of thousands of consumers who will be at increased risk of economic and personal injury and death as a result of the FTC’s decisions, which will have particularly negative impacts on vulnerable segments of the population that tend to purchase used cars, including the young, poor, and inexperienced first-time purchasers.  Rather than place the burden on the used car industry to repair safety defects prior to sale, the FTC has shifted the burden to consumers to (a) find out if the used car they wish to purchase is subject to a pending safety recall; and (2) if so, make arrangements to have it repaired.  The FTC’s decisions are particularly troubling in light of the fact that there have been millions of vehicles recalled in the last several years for serious safety defects, including the defective ignition switch used by GM which causes the car to suddenly turn off while being driven--disabling the power steering, brakes, and airbag system; and the exploding Takata Airbag, used in millions of vehicles manufactured by nineteen different automakers between 2002-2015.   The agency’s actions are also troubling because used car dealers who, prior to the FTC’s decisions, had been fixing cars subject to recalls have now decided not to do so.  The Complaint filed today asks the Court to set aside the FTC’s decisions as violating the FTC Act which prohibits “deceptive acts or practices,” the agency’s long-standing Used Car Trade Regulation Rule which prohibits used car dealers from “mispresent[ing] the mechanical condition of a used vehicle,” and the Administrative Procedure Act.  A copy of the Complaint can be found here.

Federal District Court Judge Rejects Decision Denying Animal Legal Defense Fund Intervention In Animal Welfare Act Enforcement Proceeding

In a precedent-setting case in which we are assisting the Animal Legal Defense Fund (ALDF), Judge Christopher Cooper of the federal district court for D.C. has ruled in favor of ALDF in a challenge to a decision by a Judicial Officer of the United States Department of Agriculture (USDA) to deny ALDF intervention to participate as a party in an enforcement proceeding brought by the USDA against the Cricket Hollow Zoo in Iowa.  ALDF had argued that it was an “interested person” entitled by the Administrative Procedure Act, 5 U.S.C. §555(b), to participate in the proceeding which the USDA brought after ALDF sued the agency for once again renewing the license of the Zoo despite a history of non-compliance with AWA standards.  In rejecting the Judicial Officer’s decision denying intervention, Judge Cooper found that “ALDF’s demonstrated interest in the welfare of the zoo’s animals falls squarely within the scope of the USDA enforcement proceeding,” and that the Judicial Officer had failed to provide any basis for the conclusion that ALDF’s participation would disrupt “the orderly conduct” of the proceeding.  ALDF sought to participate to provide the agency voluminous evidence regarding the Zoo’s violation of various AWA standards – evidence that had been produced in discovery in a case brought against the Zoo under the Endangered Species Act but which the agency had declined to include in the record of the AWA case.  Judge Cooper vacated the Judicial Officer’s denial of intervention and remanded the case for an explanation as to how ALDF’s limited participation would disrupt the proceeding, which is currently ongoing.  To our knowledge, this is the first decision by a federal court recognizing that intervention by an animal protection group in an AWA enforcement proceedings may be warranted.  A copy of the decision can be found here.

Elizabeth Lewis has rejoined the firm as our Law Fellow 

In 2015, Lizzie graduated summa cum laude from American University Washington College of Law, where she was a member of the Order of the Coif, the Administrative Law Review (ALR), the Environmental Law Society, and the Animal Law Society. Her note, Whale Wars: Reconciling Science, Public Opinion, and the Public Display Industry Under the Marine Mammal Protection Act, was published in ALR's 66th volume. Lizzie has worked on both domestic and international environmental and conservation issues for various non-profit organizations and government agencies, including Oceana, the Environmental Law Institute, EPA Office of Administrative Law Judges, and NOAA General Counsel's International Section. Prior to returning to Meyer Glitzenstein & Eubanks as a Law Fellow, Lizzie worked as the firm’s Law Clerk, and completed a year-long Knauss Marine Policy Fellowship in the Office of the Assistant Administrator of NOAA Oceanic and Atmospheric Research.  Lizzie will be a valuable member of our team as we help our clients navigate these challenging times.

Lawsuit Filed Demanding Access To Electronic Records Removed From USDA’s Website

On behalf of a coalition of animal protection and research groups and Delcianna Winders, the Animal Law Fellow at Harvard Law School, this morning we filed a lawsuit in federal district court in D.C. challenging the USDA’s removal of thousands of records from the public website operated by the Animal Plant and Health Inspection Service (APHIS).  These records, including inspection reports, annual reports, orders and other enforcement records concerning entities operating under the auspices of the Animal Welfare Act (AWA), were routinely published for public review for years pursuant to the 1996 E-FOIA amendments to the Freedom of Information Act (FOIA), but were abruptly removed from APHIS’s website on February 3, 2017.  The agency’s explanation for the removal – the need to protect personal privacy – is groundless, as the agency has long had the ability to redact personal information from such records under FOIA’s exemption for personal privacy.  However, because FOIA requires the release of all segregable non-exempt portions of records, this does not provide a legitimate justification for the agency’s wholesale removal of these records from its website.  The Plaintiffs, which in addition to Ms. Winders, include People for the Ethical Treatment of Animals, Physicians Committee for Responsible Medicine, Born Free USA, the Massachusetts Society for the Prevention of Cruelty to Animals, and the Beagle Freedom Project, have for years relied on these records to monitor the USDA’s implementation and enforcement (and lack thereof) of the Animal Welfare Act and to advocate for better protection for animals used in exhibitions, for research, and for pets.  The lawsuit demands the immediate release of the records that were removed from the website and the future release of all such similar records.  A copy of the Complaint can be found here.

Suit Filed Challenging FTC Decisions To Allow Sale Of “Certified” Used Cars With Safety Defects

On Monday, February 6, 2017, we filed a Petition for Review in the United States Court of Appeals for the D.C. Circuit challenging recent decisions by the Federal Trade Commission to allow automobile dealers to sell used cars as “certified” without disclosing that such cars are subject to outstanding safety defect recalls or requiring the dealers to fix any such cars.  The case has been brought on behalf of a coalition of auto-safety groups including Consumers for Auto Reliability and Safety (CARS), the Center for Auto Safety, U.S. Public Interest Group, and the California, Connecticut, and Massachusetts Public Interest Research Groups.  The FTC’s Decisions were issued as Consent Decrees settling three administrative actions against General Motors, Jim Koons Management Company, and Lithia Motors, brought under the Federal Trade Commission Act for deceptive and unfair consumer practices.  Rather than fixing the cars before selling them, or disclosing that the cars are subject to safety defect recalls, the FTC is allowing the companies to sell the vehicles as “certified” and safe, as long as they include a disclosure that the cars “may” be subject to a recall.   A recent New York Times story about the issue can be found here.