Environmentalists Blocked From Challenging Forest Regulations

A sharply divided U.S. Supreme Court has issued a ruling limiting environmental organizations' ability to challenge U.S. Forest Service regulations.

The five-judge majority ruled that five environmental groups lacked legal ability – or "standing" – to challenge Forest Service regulations exempting salvage-timber sales of 250 acres or less from statutory environmental review provisions because the organizations could not show they suffered concrete harm from the exemptions. In a dissent by Justice Stephen Breyer, the four-judge minority characterized the ruling as "counterintuitive."

Five environmental organizations, including the Sierra Club and Earth Island Institute, filed a lawsuit in late 2003, after the Forest Service exempted a 238-acre timber sale in California's Sequoia National Forest from the typical public notice, review and appeal procedures contained in federal statutes. The Bush administration had enacted Forest Service regulations exempting salvage-timber sales of 250 acres or less and fire-rehabilitation projects of less than 4,200 acres from normal reviews. The Burnt Ridge project involved salvage logging in a portion of the national forest that had burned in 2002.

The organizations and the Forest Service settled the dispute over Burnt Ridge when the Forest Service halted the timber sale and promised to permit public comment if the project returned. Still, the organizations wanted to press their claims regarding six other Forest Service regulatory exemptions that did not apply to Burnt Ridge. A District Court judge permitted the lawsuit to proceed, and in 2005 invalidated five of the exemptions and issued a nationwide injunction against their application. The Ninth U.S. Circuit Court of Appeals later ruled that the exemptions not at issue in Burnt Ridge were not "ripe" for judicial review (Earth Island Inst. v. Ruthenbeck, 490 F.3d 687 (2007)). Still, the Ninth Circuit upheld the lower court's ruling on two exemptions regarding prior notice and comment, and appeals procedures that were applicable to Burnt Ridge.

The issue for the Supreme Court, then, was whether the organizations had standing to challenge any of the Forest Service's exemptions.

Writing for the majority, Justice Antonin Scalia said that the organizations could demonstrate standing only if the challenged regulations would have a particular, concrete effect on the groups. Once the groups settled the Burnt Ridge dispute, though, the groups could not make that showing, according to Scalia, who was joined by the usual group of Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Anthony Kennedy.

"We know of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for the action (here, the regulation in the abstract), apart from any concrete application that threatens imminent harm to his interests," Scalia wrote.

Scalia said that affidavits from group members – which explained the members' interests in national forests and how they would be harmed if the exemptions remained in place – that were filed after the Burnt Ridge settlement were submitted too late to establish standing. Scalia thought little of the affidavits anyway, writing, "Accepting an intention to visit the national forests as adequate to confer standing to challenge any government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact."

In a dissent joined by Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg, Breyer said the majority was setting the bar unreasonably high for plaintiffs. He noted that the Forest Service had admitted it planned to exempt thousands of salvage-timber sales in the near future.

"The court," wrote Breyer, "holds that the Sierra Club and its members (along with other environmental organizations) do not suffer any ‘concrete injury' when the Forest Service sells timber for logging on ‘many thousands' of small (250-acre or less) woodland parcels without following legally required procedures – procedures which, if followed, could lead the Service to cancel or to modify the sales. Nothing in the record or the law justifies this counterintuitive conclusion."

According to Breyer, there was no basis for the court to ignore group members' affidavits, which, he wrote, "adequately show a ‘realistic threat' of injury to plaintiffs brought about by reoccurrence of the challenged conduct – conduct that the Forest Service thinks lawful and admits will reoccur."

The ruling pleased private logging companies and the American Forest and Paper Association, but it was unclear what the Obama administration thought. It was the Bush administration that sought review of the Ninth Circuit's decision, and the case was argued last October.

Environmentalists, who had received amicus support from California Attorney General Jerry Brown, said that future lawsuits would have to contain more detail about specific harm resulting from challenged regulations.

The Case:
Summers v. Earth Island Institute, No. 07-463, 09 C.D.O.S. 2568. Filed March 3, 2009.
The Lawyers:
For Summers: Edwin Kneedler, Department of Justice, (202) 514-2203.
For Earth Island Institute: Matt Kenna, Western Environmental Law Center, (970) 385-6941.