The Bush court sets back environmental litigation

While Obama is undoing some Bush rules on endangered species, the Supreme Court renders a verdict that could be a serious blow to future environmental lawsuits.
The North Fork of the Skykomish River in the Wild Sky wilderness.

The North Fork of the Skykomish River in the Wild Sky wilderness. None

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.

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues. You can reach him in care of editor@crosscut.com.


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Comments:

Posted Mon, Mar 9, 9:19 a.m. Inappropriate

Oh, the horror! The Supreme Court decides a case on Constitutional grounds rather than on what makes the justices feel good! This just proves that aesthetics-based environmentalism is a shaky legal construct. In the future, people bringing lawsuits like this will have to have a stronger argument than "I don't like it."

dbreneman

Posted Mon, Mar 9, 9:56 a.m. Inappropriate

Great article, I appreciate the info. I don't know much about environmental law, but this article gets me wondering whether the legal traditions we have are as limited, when it comes to grappling with global climate change and widespread extinctions, as Newtonian physics is. When environmental problems cross borders and have impacts that accelerate faster than straight-line progressions, how do you determine who has standing, where and when?

Posted Tue, Mar 10, 11:13 a.m. Inappropriate

dbreneman does not have their facts straight. The argument brought in the lawsuit was not "I don't like it," it was the Bush regulations violated Federal law. The lower courts agreed the regulations were illegal-the Supreme Court did not address the legality of the regulations.

The lawsuit was NOT thrown out on Constitutional grounds either. It was thrown out on a technicality of when some of the standing declarations were filed. The majority only considered one standing declaration and refused to consider several other standing declaration that if considered would have met the Constitutional standard for standing. The other declarations were not considered due to timing related to part of the case getting settled and when standing was challenged. The flimsy basis for not considering these declarations was not constitutional. Additionally, 4 of the justices felt the standing declaration that was considered was sufficient.

The Bush administration was making arguments that basically they were above the law and citizens cannot challenge illegal regulations. Fortunately the Supeme Court did not adopt these extreme positions.

jbensman

Posted Tue, Mar 10, 7:37 p.m. Inappropriate

I hope the trend narrows environmental lawsuits. For years now these suits have had the effect of rendering impossible any sane management of our national forests.
Disease and high fuel loading on unmanaged forests present catastrophic fire potential and lack of economic opportunity, jobs, tax income and all that goes with a sensible timber sale program.
It's not global warming folks. Why don't environmentalists spend some time and effort addressing forest health? You don't want logging, come up with an alternative.

Posted Tue, Mar 10, 8 p.m. Inappropriate

Mr Chasan,
Write a piece on our dimishing forestry infrastructure, a huge problem. Spotlight the states newest sawmill, Sierra Pacifics mill in Skagit County. Ask them why they had the gonads to build it, and why not in Everett where they originally wanted to put it.
Tackle forest land conversion, and the underlying problems contributing to it. Reference Northwest Environmental Forum.
Just some ideas for future pieces.

Posted Wed, Mar 11, 9:23 a.m. Inappropriate

jbensman writes:

"dbreneman does not have their [sic] facts straight. The argument brought in the lawsuit was not 'I don't like it,'"

From the article:

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.”
jbensman writes:

"The lawsuit was NOT thrown out on Constitutional grounds either."

From the article:

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.
jbensman's argument seems to be with the original reporting, not my gloss on it. Why am I cited as the bearer of ill-straight facts?

dbreneman

Posted Fri, Mar 13, 6:11 a.m. Inappropriate

I am sad that Daniel would develop a thesis based on what appears to be a political position. It looks like the court denied standing to a case that lacked specificity. Thank goodness that the court drew the line here.

This kind of case illustrates why the U.S. is one the most litigious societies in the world. The practice makes trial lawyers and insurance companies rich at the expense of the common person, better health care, U.S. global competitiveness, etc.

Please Daniel, give the common person a chance to survive in this country.

siderod

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