Xerces Society for Invertebrate Conservation v. Shea, 3:22-cv-00790

Plaintiffs (Xerces Society and Center for Biological Diversity) challenged the Animal and Plant Health Inspection Service’s (APHIS) 2019 Environmental Impact Statement (EIS) and state-level Environmental Assessments (EAs) for its Rangeland Grasshopper and Mormon Cricket Suppression Program, alleging violations of NEPA and the APA.
APHIS is statutorily required to manage grasshopper and cricket populations on rangelands, which may include pesticide use, under the Plant Protection Act.
Plaintiffs argued that the 2019 EIS and state-level EAs failed to adequately consider statutory requirements, alternatives, baseline data, and cumulative impacts under NEPA.
The court found the EIS and targeted state EAs violated NEPA due to inadequate purpose and need statement, failure to consider Integrated Pest Management (IPM) techniques, lack of baseline data, and inadequate cumulative impact analysis.
The decision focused on the appropriate remedies, including whether to vacate the faulty documents immediately, defer vacatur, or impose injunctive relief.
Proceedings were at the remedies phase after the court’s prior summary judgment largely favoring plaintiffs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
How should 2019 EIS be remanded?	Remand with clear instructions, require a new EIS and deadline.	Defer to agency’s decision on method; deadline unnecessary.	Two-year deadline for new/supplemental EIS imposed; otherwise defer to agency.
Should Montana & Wyoming EAs/FONSIs be vacated now?	Vacate both immediately to prevent harm from flawed documents.	Vacatur would harm local communities during upcoming spraying.	Vacatur deferred until after 2025 spraying season to avoid harmful disruption.
Scope of injunctive relief during remand	Require APHIS to report and disclose ongoing pesticide applications.	Relief not warranted; NEPA is procedural, such requirements go beyond.	Injunctive relief denied; not sufficiently tailored, exceeds NEPA's scope.
Interagency cooperation and consideration of IPM	Explicit order for APHIS to involve cooperating agencies on IPM.	Such instructions exceed court’s role and agency discretion.	No such recommendation issued; agency retains discretion on cooperation.

Alaska Conservation Council v. U.S. Army Corps of Eng'rs, 486 F.3d 638 (9th Cir. 2007) (standard remedy for unlawful agency action is vacatur and remand)
Humane Soc’y v. Locke, 626 F.3d 1040 (9th Cir. 2010) (courts may remand without vacatur in rare circumstances)
Alsea Valley All. v. U.S. Dep’t of Com., 358 F.3d 1181 (9th Cir. 2004) (vacatur normally accompanies remand for unlawful agency action)
WildEarth Guardians v. U.S. Dep’t of Agric. Animal & Plant Health Inspection Serv., 135 F.4th 717 (9th Cir. 2025) (vacating both EA and FONSI is appropriate)
Center for Biological Diversity v. National Highway Traffic Safety Administration, 538 F.3d 1172 (9th Cir. 2008) (standards for ordering EIS after remanding an EA)
California Cmtys. Against Toxics v. U.S. Env’t, 688 F.3d 989 (9th Cir. 2012) (vacatur is not required and may depend on disruptive consequences)
Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015) (injunctive relief must be tailored to remedy the specific harm alleged)