Argument Report: Environmental Groups Out on a Limb?

The Supreme Court justices on Wednesday seemed receptive to government arguments that a coalition of environmental groups lacked standing to bring a challenge to U.S. Forest Service regulations because their claims were not tied to a specific site or project.

The Supreme Court justices on Wednesday seemed receptive to government arguments that a coalition of environmental groups lacked standing to bring a challenge to U.S. Forest Service regulations because their claims were not tied to a specific site or project.

Also on Wednesday, the Court considered a highly anticipated case concerning limitation of Navy sonar training exercises because of the environmental impact on marine mammals, as well as a key employment dispute that asks whether employees can bring retaliation claims based on cooperation with internal sexual harassment investigations.

In the Forest Service case, Summers v. Earth Island Institute, the environmental organizations challenged regulations under the Forest Service's Appeals Reform Act that exempted certain projects from notice, comment and appeal requirements. The challenge initially involved the Burnt Ridge Project in Sequoia National Forest, but after the project was withdrawn and the parties settled the case, the environmental groups continued to pursue a facial challenge to the regulations. The 9th U.S. Circuit Court of Appeals upheld the district court's injunction against the implementation of the regulations nationwide.

Deputy Solicitor General Edwin S. Kneedler argued on behalf of the government that the environmental groups could only establish standing to challenge the regulations "by showing an imminent injury by virtue of harm to a site-specific activity."

Matt Kenna of the Western Environmental Law Center, who represented the environmental groups, told the justices that the facial challenge to the regulations "could have been brought outside the context of the Burnt Ridge Project, as long as we had shown that it had been applied to a project and continued to be applied to the plaintiffs on an ongoing basis."

But Chief Justice John Roberts Jr. said the environmental groups had not pointed to any other concrete action implicated by the regulations. "You haven't shown any standing with respect to the Burnt Ridge Project on an ongoing basis because that has been settled ... it's out the door," Roberts told Kenna.

Justice Antonin Scalia also questioned whether the groups had established a likelihood of imminent harm posed by the regulations.

"They are just people interested in forests throughout the United States," Scalia said. "That's quite different from saying, 'I am about to suffer harm, imminent harm, to me.' I don't see anything ... except in the case that was settled that has that kind of a connection."

But Justice David Souter asked whether a "somewhat elastic standard" regarding standing in the case would be appropriate because of the environmental groups' claim that if the Court denies 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."

The argument also touched on the nationwide scope of the injunction against the regulations that was affirmed by the 9th Circuit. Justice Ruth Bader Ginsburg raised the issue of "the 9th Circuit making a law for the entire nation, on a controversial question that normally the court would just rule for its own area."

A moment of levity came when Kenna mentioned a "Christmas tree permit" as an example of an action that would be exempt from notice and comment requirements.

"You need a permit to have a Christmas tree? Where is this?" Scalia asked.

Kenna said that he cut down his own Christmas tree every year.

"You cut down a tree in the national forest without approval?" the chief justice asked.

"I did get the permit, Your Honor," Kenna assured him.