The Bush environmental legacy won one and lost one on March 3. It lost when President Barack Obama scrapped last-minute regulations that had threatened to undercut the Endangered Species Act. The new Bush rules exempted any federal agency contemplating action that might jeopardize the recovery of an endangered species from consulting the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, arguing that the requirement consumed too much time. Consultation had been the rule before, and it is the rule again. Chalk one up for the tree huggers.
But Bush’s legacy triumphed when his Supreme Court appointees joined for a 5-4 ruling against environmentalists who had challenged Forest Service regulations for small salvage logging projects in northern California and elsewhere. In Summers v. Earth Island Institute, the Court decided that the plaintiffs did not have standing to sue, limiting the opportunity for environmentalists to challenge government actions in the future..
The plaintiffs had been granted standing to challenge the Forest Service regulations that limited public hearings and appeals for a specific salvage project at Burnt Ridge, in the Sequoia National Forest of Tulare County, but they had already settled that dispute. They had also tried to challenge the underlying regulations that would apply to other small salvage and thinning operations around the country. There, the Court said they had not proved standing.
Justice Scalia, writing for the majority, noted “a failure to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of [plaintiff and Illinois resident Jim] Bensman’s to enjoy the National Forests. The National Forests occupy more than 190 million acres. . . . There may be a chance, but is hardly a likelihood, that Bensman’s wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations. Indeed, without further specification it is impossible to tell which projects are (in respondents’ view) unlawfully subject to the regulations.”
Bensman had alleged that he had been prevented from appealing some 20 small timber sales “in places I have been before and want to go back and see again” within Pennsylvania’s Alleghany National Forest, but Scalia said his “vague desire to return is insufficient to satisfy the requirement of imminent injury.”
As for the high statistical likelihood that the Sierra Club’s membership included people who would be injured by specific sales, Scalia continued, Justice Breyer’s “dissent proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury.. . . This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.”
How great a blow to environmental litigants will this be? “My suspicion is it will be raised in countless cases,” says Earthjustice attorney Kristen Boyles. “The other side will say this is the end of environmental law as we know it.”
Boyles doesn’t buy that. The Supreme Court ruled on Constitutional grounds. The ruling doesn’t undercut statutory provisions for citizen suits under the National Environmental Policy Act, the Clean Water Act, or other laws. And even the Constitutional concepts aren’t really new. The court has simply required more specificity. In the future, environmental plaintiffs can respond by getting more specific. Instead of saying they plan to visit a particular forest sometime in the future; they may name specific GPS coordinates and specific dates.
It all could have been a lot worse. “The fact that they focused on the standing issue rather than the substantive issues is a good thing,” Boyles says.
But she doesn’t take the impact of the decision lightly. She thinks it reflects a general trend toward narrowing public access to the courts.
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