Justices weigh standing of groups challenging federal agency rules

The Supreme Court heard oral arguments today on whether a group of environmental organizations has established standing to contest a series of Forest Service regulations.

The case, Summers v. Earth Island Institute, turns on whether the U.S. Forest Service violated the requirements of the Forest Service Decision Making and Appeals Reform Act when it enacted regulations that severely limited the rights of notice, appeals and public comment on certain categorically excluded projects.

A number of environmental groups filed a lawsuit to challenge the regulations, which they argued removed the right to appeal the agency's timber management decisions. In 2005, the U.S. District Court for the Eastern District of California issued a nationwide injunction against the Forest Service. And in August 2006, the 9th U.S. Circuit Court of Appeals upheld the lower court's decision.

The Bush administration urged the justices to take the case, contending that the environmental groups lacked the standing to sue because the regulations were not ripe for review before they were applied to the specific project challenged in the case.

During oral arguments, Deputy Solicitor General Edwin Kneedler reiterated this argument, calling the appeals court's affirmation of the injunction "contrary to bedrock principles of Article III standing, of the availability and scope of judicial review under the Administrative Procedure Act, and the granting of equitable relief."


Justice David Souter, along with Justice Stephen Breyer, pressed back on Kneedler's arguments. At one point, Souter asked the deputy solicitor general: "Don't we have to assess the need for showing a specific threatened injury on a somewhat elastic standard in a case like this? Because the claim is made on the other side that if we do not allow, if we do not find standing to challenge the regulation per se, there are going to be a number of specific instances, which in practical terms, can never be challenged when that regulation is applied."

At several points, Justice Antonin Scalia seemed to coax Kneedler toward a desired answer, with Kneedler saying: "That was my point."

Scalia and Chief Justice John Roberts questioned Matt Kenna of the Western Environmental Law Center to explain what Scalia called "the power in the abstract to challenge the agency's consistent application of a certain procedure."

State governments, academics, environmentalists and industry groups are watching the case closely.

"Our members invest substantial resources to plan for, and comply with, a known set of regulations," stated the California Forestry Association, joined by the National Association of Home Builders, the American Farm Bureau Federation and others, in a friend-of-the-court brief. "When non-regulated third parties challenge those regulations ... [and] prevail, district courts too frequently issue nationwide injunctions against the rule."

While on opposing sides with the industry groups, Ara Marderosian, executive director of the Sequoia ForestKeeper, said her organization also decided to get involved in the case because of its broader impact.

"The largest implication of this very important case is that our victory would confirm our lower court wins that re-established the public's right to participate in management of public lands by challenging Forest Service projects nationwide," Marderosian said. "One of the oldest rights recognized by our courts is the public's right to protect its natural resources, which are owned by all, not just those who would earn a buck destroying them."

The court also heard arguments in Winter v. Natural Resources Defense Council, which centers on whether the Navy can be barred from conducting sonar-training exercises that may pose a threat to whales off the coast of Southern California (see related story).

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