Challenges to Long-Standing Environmental Rules Get a Boost

The U.S. District Court for the District of Oregon has vacated a categorical exclusion (“CE”) that had authorized commercial National Forest-thinning projects to forgo formal National Environmental Policy Act (“NEPA”) analysis since the Forest Service promulgated it more than 30 years ago, as well as three forest-thinning projects that relied on the CE. The decision is particularly notable because the standard statute of limitations for challenging federal agency actions is six years.[1] Relying on the Supreme Court’s 2024 decision in Corner Post,[2] however, the court allowed two of the plaintiff environmental groups to proceed with their claims by finding that such claims had not accrued upon promulgation of the CE, but rather not until the groups were actually “injured” within the meaning of the Administrative Procedure Act (“APA”).

The district court’s opinion in Oregon Wild v. Forest Service[3] is one example of how lower courts are beginning to apply the Supreme Court’s recent series of landmark administrative law decisions in the realm of environmental and natural resources law. The opinion appears to be one of the first instances of a federal court’s application of the holding in Corner Post to allow a claim to challenge a settled environmental regulation that was promulgated more than six years earlier. The district court’s analysis therefore effectively provides a road map to a broad array of regulated entities, industry groups, and environmental groups who may be looking to challenge regulations of any vintage.

The Forest Service has until mid-March to appeal the district court’s decision but, as of this writing, has not done so.

Legal Background

As the Supreme Court recently emphasized in Seven County Infrastructure Coalition v. Eagle County,[4] NEPA requires federal agencies to analyze the reasonably foreseeable environmental impacts of the discrete proposed actions within their regulatory purview before authorizing them.[5] Environmental analyses under NEPA can be documented either in the form of an Environmental Impact Statement (“EIS”) for proposed actions with reasonably foreseeable significant effects, or in an Environmental Assessment (“EA”) for actions not projected to have reasonably foreseeable significant effects (or if their effects’ significance is unknown). 

But there is a third category of proposed actions for which an agency need not prepare either an EIS or an EA: those that fall within the parameters of a “Categorical Exclusion.” As amended in 2023, NEPA now authorizes an agency to adopt CEs for categories of actions that it “has determined normally do[] not significantly affect the quality of the human environment” as that term is defined in the statute.[6] Before CEs were authorized by statute, the Council on Environmental Quality (“CEQ”) authorized CEs in its original NEPA implementing regulations, first promulgated in 1978.[7] (CEQ rescinded these regulations in full last February.[8])

Under the department-wide NEPA implementing regulations the U.S. Department of Agriculture promulgated in July 2025, several dozen CEs apply to the Forest Service (previously codified CEs that have been moved within the Code of Federal Regulations, but largely unchanged in substance).[9] The CE at issue in Oregon Wild, known as CE-6, authorizes the Forest Service to forgo preparing an EA or EIS for “[t]imber stand and/or wildlife habitat improvement activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction.”[10] One example the CE expressly provides of such activities, at issue in Oregon Wild, is forest thinning projects “to improve growth or to reduce fire hazard including the opening of an existing road to a dense timber stand.”[11] The Forest Service has used CE-6 hundreds of times for activities that collectively involve millions of acres of National Forest System lands.[12] Three of these involved the projects at issue in Oregon Wild, known respectively as the South Warner Project,[13] the Baby Bear Project,[14] and the Bear Wallow Project,[15] located in the Fremont-Winema National Forest in southern Oregon.

The three projects range from just under 5,000 acres to nearly 70,000 acres in size and are all designed to mitigate wildfire risk and improve wildlife habitat through various vegetation management activities, including a certain level of commercial timber thinning (i.e., prescribed intermediate timber harvest performed by contractors pursuant to commercial timber sale contracts). For each project, the Forest Service issued a Scoping Notice to allow the public to offer their views on the project’s environmental effects. After reviewing these Scoping comments, the agency issued decision memos documenting its determinations that the projects involve no extraordinary circumstances that would foreclose the ability to rely on CE-6 in complying with NEPA[16] and its authorization to implement the projects.

Original Round of Litigation Challenging CE-6 Projects in District Court, Ninth Circuit

Three environmental groups brought a frontal assault on CE-6 itself and also sought review of the Fremont-Winema CE-6 projects in the U.S. District Court for the District of Oregon. Plaintiffs claimed both (1) that the Forest Service’s reliance on CE-6 was improper because the magnitude of the commercial forest thinning allowed was too significant to qualify for use of the CE; and (2) that CE-6 is invalid because the Forest Service failed to make a reasoned finding that the activities it authorizes normally do not cause significant environmental effects.

In 2023, the district court originally rejected both of these claims. The court found that the Projects, even though they authorized between 3,000 and 16,000 acres of commercial thinning, fell squarely within the express language of CE-6 as “timber stand improvements,” and noted that CE-6 does not contain any acreage limit for such improvements. It also determined Plaintiffs’ claim attacking the validity of CE-6 to be time-barred under the generic six-year limitations period for court challenges to federal actions in 28 U.S.C. § 2401(a), as the regulation adopting CE-6 was promulgated in 1992. Plaintiffs then appealed to the Ninth Circuit.

While Plaintiffs’ appeal was pending, the Supreme Court issued its opinion in Corner Post, in which it ruled that the six-year period in Section 2401(a) does not commence for claims brought under the APA until a plaintiff is actually injured by the final agency action of which it seeks judicial review. More specifically, the Court found timely a convenience store’s claim brought under the APA to challenge a Federal Reserve regulation issued a decade earlier because the store did not exist when the rule was promulgated and thus could not have been legally injured by the rule until it was formed, fewer than six years before it filed its claim.

Less than three months later, the Ninth Circuit issued its decision in the Oregon Wild appeal.[17] The court upheld the district court’s ruling that the projects were covered by CE-6, but vacated the ruling that Plaintiffs’ claim challenging the validity of CE-6 was time-barred in light of Corner Post, and remanded that claim to the district court to determine whether Corner Post compelled a different result in the first instance.

District Court’s Opinion on Remand from the Ninth Circuit

On remand, the district court examined whether Plaintiffs had brought their claim challenging the validity of CE-6 within the six-year statute of limitations. The court considered this issue with respect to each individual Plaintiff and determined that two had timely filed their claims, while one had not. The Plaintiff that had not timely filed the claim was barred because it had been injured by adoption of CE-6 in 2006 when it participated in a NEPA process for a previous project on another National Forest that had relied in part on CE-6. The court found the second Plaintiff’s claim timely and that it was not legally injured by CE-6 until shortly before it filed the case even though there was a project in the vicinity of the Plaintiff’s headquarters which relied on CE-6, as there was no evidence the Plaintiff had notice of that project, let alone challenged it. The third Plaintiff timely filed its claim because it was formed two years before the claim was filed—so the court found it could not have been injured before it was formed.

On the merits of CE-6’s validity, the district court looked to Seven County Infrastructure Coalition v. Eagle County[18] for the appropriate standard of review. The court concluded that even though Seven County declared that the “bedrock principle of judicial review in NEPA cases” is summed up in a single word, “[d]eference,”[19] agencies nevertheless must still satisfy “arbitrary and capricious” review under the APA. To meet this deferential standard, the court determined the Forest Service needed to provide a reasoned decision based on a consideration of relevant evidence and factors that the activities the Categorical Exclusion encompasses normally do not have a significant environmental effect under NEPA. The court held that the Forest Service’s adoption of CE-6 was arbitrary and capricious because the agency did not cite any evidence for its conclusion that unlimited commercial thinning and other activities authorized by CE-6 would not have a significant environmental effect.[20] Without evidence upon which the Forest Service relied in promulgating CE-6 to support a finding of no significant effect, particularly because CE-6 encompasses thinning without an acreage cap, the district court believed there was nothing in the agency record for it to defer to.

Accordingly, the district court vacated CE-6 as to all future Forest Service actions that were not “final agency actions” as of the date of its opinion, as well as the agency’s approval of the three forest-thinning projects before the court, while exempting existing commercial thinning timber sale contracts implementing those same projects. The court’s remedy reached beyond the specific projects that were the subject of Plaintiffs’ claims notwithstanding the Supreme Court’s recent opinion in Trump v. CASA, Inc., which largely forecloses the imposition of “universal injunctions” that extend beyond the parties to the litigation.[21] In explaining its prospective nationwide vacatur of CE-6, the district court cited a footnote in CASA which stated the opinion did not “resolve[] the distinct question whether the [APA] authorizes federal courts to vacate federal agency action.”[22]

Oregon Wild is one example of how the Supreme Court’s recent opinions reshaping administrative law can be expected to affect federal environmental litigation.[23] The district court’s order vacating a 33-year-old CE that has heretofore provided NEPA coverage for hundreds of National Forest thinning projects raises salient questions: How wide is the courthouse door open for interested parties to challenge long-standing environmental regulations? After Corner Post and Oregon Wild, are there any limits on creating a new entity to challenge even the oldest of federal rules?[24] Seven County emphasized that extraordinary judicial deference be granted to agency factfinding and judgment calls in NEPA cases, but it did not eliminate the role of APA review in those cases. And although the Supreme Court in CASA circumscribed the authority of courts to issue universal injunctions, Oregon Wild relied on the “loose end” left untied down in CASA to vacate a CE under its statutory remedial authority in the APA that will have applicability beyond the parties to the case. 

Conclusion

If you would like to learn more about the Oregon Wild decision, its implications for projects subject to environmental review, or the impact of the Supreme Court’s recent decisions, please contact Steve Odell, Albert Barker, or Jessica Ferrell.

[1] 28 U.S.C. § 2401(a).

[2] Corner Post, Inc. v. Board of Governors of Fed. Res. Sys., 603 U.S. 799 (2024).

[3] Oregon Wild v. Forest Serv., Case No. 1:22-cv-1007-MC (D. Or. Jan. 13, 2026).

[4] 605 U.S. 168 (2025).

[5] Seven Cnty. Infrastructure Coal. v. Eagle Cnty., 605 U.S. 168, 186-91 (2025); 42 U.S.C. § 4332(2)(C).

[6] 42 U.S.C. § 4336(a)(2) & § 4336e(1); see also 16 U.S.C. §§ 6501 et seq. (Healthy Forest Restoration Act, as amended, also prescribes various statutory CEs the Forest Service can use).

[7] 43 Fed. Reg. 55,977, 55,991, 55,992, 56,003-04 (Nov. 29, 1978).

[8] 90 Fed. Reg. 10,610-16 (Feb. 25, 2025).

[9] 90 Fed. Reg. 29,632, 29,651-59 (July 3, 2025) (codified at 7 C.F.R. Part 1b). 

[10] Codified at 36 C.F.R. § 220.6(e)(6) at time of Project approvals, since transferred to 7 C.F.R. § 1b.4(d)(30) as of July 3, 2025.

[11] Supra note 10.

[12] https://www.congress.gov/118/meeting/house/115654/documents/HHRG-118-II10-20230426-SD008.pdf (in the nearly five-year period between FY2019 and the third quarter of FY2023 the Forest Service used CE-6 more than 600 times); GAO, Forest Service: Use of Categorical Exclusions for Vegetation Management Projs., CYs 2003-05, p. 16 (Tbl. 3) (Oct. 2006) (showing use of CE-6 more than 1000 times in the three-year period between 2003-05) (available at https://www.gao.gov/assets/gao-07-99.pdf).

[13] South Warner Habitat Restoration Project Decision Memo.pdf

[14] https://usfs-public.app.box.com/v/PinyonPublic/file/955422667465.

[15] https://usfs-public.app.box.com/v/PinyonPublic/file/955420212197.

[16] See 36 C.F.R. § 220.6(b); current version now set forth in USDA Department-wide NEPA implementing regulations at 7 C.F.R. § 1b.3(f) (91 Fed. Reg. 29,649-50).

[17] Oregon Wild v. Forest Serv., Slip Op., 2024 WL 4286965 (9th Cir. Sept. 25, 2024).

[18] 605 U.S. 168 (2025).

[19] Id. 185.

[20] Or. Wild, 2026 U.S. Dist. LEXIS 6263, at *32-33.

[21] 606 U.S. 831 (2025).

[22] CASA, 606 U.S. at 847 n.10.

[23] Oregon Wild is one of the first cases to apply Corner Post in the environmental or natural resources context, and may well be the first one to rely on that opinion’s rationale to vacate a rule in that sphere promulgated outside the six-year limitations period. See also Int’l-USA v. United States Army Corps of Eng’rs, No. 24-cv-62452-WPD, 2025 U.S. Dist. LEXIS 156054, at *8-9 (S.D. Fla. July 28, 2025) (declining to dismiss NEPA claim on agency’s statute of limitations defense based on Corner Post in light of factual issues deriving from pleadings regarding when plaintiffs suffered cognizable injury that were inappropriate for resolution at dismissal stage); First Amended Complaint, Texas v. NRC, No. 6:24-cv-00507 (E.D. Tex. Apr. 7, 2025) (plaintiff States brought claims seeking to invalidate rules Nuclear Regulatory Commission’s predecessor agency promulgated in 1956).

[24] Corner Post, 603 U.S. at 843-44 (Jackson, J., dissenting) (warning that majority’s holding means “there is effectively no longer any limitations period for lawsuits that challenge agency regulations on their face”).