LAW: Experts weigh impact of high court Forest Service ruling
Noelle Straub
E & E Greenwire
03/04/2009
Interpretations vary over whether a Supreme Court decision yesterday in a Forest Service case will limit environmentalists' ability to challenge federal regulations on public land, but all sides agree it will not stop them from trying.
In a 5-4 ruling, the justices sided with the Bush administration and ruled that the environmental groups that had challenged a 2003 Forest Service rule exempting small logging projects from public comment and administrative appeals, as it applied to a specific project in California's Sequoia National Forest, did not have standing to do so.
The majority ruled in Summers v. Earth Island Institute that groups or individuals can challenge regulations in court only if they can show that they will be directly harmed by specific actions resulting from the regulations (E&ENews PM, March 3).
Some environmental lawyers and experts say the ruling has only a narrow effect, while others argue it could lead to broad changes.
Amanda Leiter, a Catholic University of America Columbus School of Law professor who has been closely following the case, said it does not significantly change the basic requirements of standing.
"I don't think the implications are all that significant," she said. "I think it's a fairly narrow, fact-based decision."
Leiter said the Bush administration had pushed much broader arguments that would have limited standing to bring a type of challenge in which plaintiffs argue a statute is in all circumstances unconstitutional, but that the Supreme Court declined to address those.
"The government was advancing a very restrictive standing theory that would have limited standing to bring facial challenges," she said. "The majority doesn't even touch that idea and instead just says these particular affidavits aren't sufficient to show a concrete [harm]."
Beyond the question of standing, the Bush administration had asked the court to find that groups could challenge regulations only in response to individual and specific instances. The court did not address this issue in its final ruling.
Matt Kenna, staff attorney for the Western Environmental Law Center, expressed disappointment that the small-scale Forest Service sales will be able to continue without public comment, but was pleased that the court "did not adopt the very extreme position the Bush administration had taken in the case."
Leiter doesn't think environmental groups will shy away from filing lawsuits on Forest Service timber projects in the future. "I think the affidavits could have been drafted in a way that would have satisfied the court," she said. "And people will just have to be more careful in the future to do that."
Scott Horngren of Haglund Kelley Horngren Jones & Wilder LLP in Portland, Ore., agreed that the decision will not stop environmental groups from suing. "Not at all," he said. But he said the lawsuits will have to be more carefully focused.
"Hopefully, their future lawsuits will be with a scalpel rather than with a bludgeon, so they really isolate the project they have a problem with, raise the issue within the context of the project rather than say you need to shut the world down everywhere," he said. "After this decision, courts are going to be more skeptical of cases that are more broadly drawn, without evidence of harm to the environment beyond the specific project that is being challenged."
He said the case could have larger implications for timber companies that buy the Forest Service sales. "I would say, from my clients' perspective ... it's a pretty broad ruling, or at least has the potential to be broader."
The companies and the Forest Service have been frustrated by lawsuits solely aimed at stopping timber production even if the sales are "essentially noncontroversial" and not in pristine areas by groups that have only walked through the areas in order to meet standing requirements, Horngren said.
"It's going to require the plaintiffs, I think, to really use this for some of their interests, like recreation and wildlife viewing and that sort of thing." he said.
The decision could also mean that rulings will have to be limited to specific projects and courts won't apply nationwide injunctions, he said.
"I think the most significant thing about the opinion is that it's going to hopefully have the courts think twice before they enter wide-ranging injunctions that affect other areas of the country, whether the plaintiffs in that part of the country have no interest," he said.
Indiana University Maurer School of Law Professor Robert Fischman said the narrow aspect of the case is very clear, in that the 2003 Bush rule stands. "Whether this is something the Obama administration wants to review and revise or not is unclear," he said.
The ruling will force environmental groups to challenge specific projects rather than broader programs and rules, he said. "There are some upsides and downsides to that, but I do think that's the practical effect," he said.
But the broader implications of the case are harder to tell, he said. The Supreme Court has been fairly consistent in what constitutes concrete enough injury to establish standing, he said, but this case marks a change...
