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Great Kozinski opinion (non-gun)

Defenders of Wildlife v. US EPA (June 8, 2006). Apparently a panel (3 judges) of the 9th Circuit ruled that when the EPA transfers Clean Water Act authority to a State, it must not only satisfy the nine criteria listed in the CWA for such transfer, but also conduct full Endangered Species Act inquiry and process. EPA moved for rehearing en banc (by all the judges ... or actuallly by half of them, under Ciricuit rules), but didn't get it. Kozinski dissents from the denial. It's all rather technical, but his first paragraph is worthy of admiration:

"Less than two years ago, the Supreme Court unanimously reversed our interpretation of the National Environmental Policy Act (NEPA). See Dep't of Transp. v. Pub. Citizen, 541 U.S. 752 (2004). Tone-deaf to the Supreme Court's message, the panel majority in this case interprets the Endangered Species Act (ESA) in precisely the same incorrect way we interpreted NEPA, dramatically expanding agencies' obligations under the law. Along the way, the majority tramples all over the Fish and Wildlife Service's (FWS) reasonable interpretation of the ESA, deliberately creates a square inter-circuit conflict with the Fifth and D.C. Circuits, and ignores at least six prior opinions of our own court. Finally, the decision is one of considerable importance to the federal government and the states of our circuit. This is precisely the kind of case we should take en banc to set our own house in order."

Judge Kleinfeld's dissent is remarkably concise. He writes to show "how simple this case should have been." "[T]he statute is mandatory. Congress commands that the agency "shall approve" state programs "unless" one or more of nine conditions are not met. The "shall/unless" formula makes the nine condition list exclusive, and courts cannot add conditions to the list.*fn6 The language has the look of a careful legislative compromise necessary to get the votes for passage.The statute leaves no room for conditions ten, eleven, or whatever else we may think Congress should have added."

Then Judge Berzon writes a concurrence, complaining that other judges, ahem, have started writing dissents from denials of rehearing "as a matter of routine" that unfairly portray the panel decision as filled "with rampant error." Kozinski here is "accusing the panel majority of all manner of judicial perfidy."