FOR IMMEDIATE RELEASE

Supreme Court’s Narrow Ruling Keeps Citizen’s Right to Challenge Unlawful Government Regulations

But Justice’s limited ruling lets stand the Bush administration’s regulation that prevents the public from reviewing destructive activities in national forests.

Contact:

Matt Kenna, Western Environmental Law Center, kenna@westernlaw.org (970) 769-9132 (cell); (970) 385-6941 (office)

The U.S. Supreme Court today, in a very limited 5-4 decision, reversed the lower courts’ findings that had overturned a Bush administration rule that denied citizens the right to have a voice in the management of national forests. (Summers v. Earth Island Institute).  However, the Court rejected the Bush administration’s attempt to create a broad ruling that would have severely limited citizens the right to challenge any unlawful government regulation.

“We are disappointed that the Court reinstated these harmful forest regulations,” said Matt Kenna, the WELC attorney who argued the case before the Court. “However, the Court’s ruling was narrow in scope and did not accept any of the government's broad theories that would have precluded citizens from challenging a federal regulation except when applied to a specific project. This was the most critical issue at stake- if the government had prevailed on its theory, citizens would have had to file thousands of individual suits to challenge harmful regulations on a case-by-case basis while the government could continue to apply the regulation even in the face of multiple court rulings finding the regulation unlawful.”  WELC was assisted in the case by Scott Nelson of Public Citizen. WELC represented Earth Island Institute, Heartwood, Sierra Club, Sierra ForestKeeper, and Center for Biological Diversity.

The case began when conservation groups successfully challenged federal regulations issued in 2003 that eliminated the public’s ability to comment on and appeal U.S. Forest Service actions such as commercial timber sales, oil and gas development and off-road motorized vehicle use. The victory was upheld on appeal.  However, the US Supreme Court granted review. 

On October 8, 2008 the high court heard oral arguments on the case on not simply whether the limitations on public participation in Forest Service decisions were permissible, but on a much larger issue that could make it virtually impossible for citizens to effectively challenge any regulation (not just environmental) issued by a federal agency. The Bush administration argued that the courts generally lack authority to hear cases brought by citizen groups that challenge federal regulations, and that even if a court can hear such a case, it can’t set aside a regulation nationwide, but only within its local jurisdiction. 

While not adopting this broad argument, the majority opinion, written by Justice Scalia, sided with the government’s more narrow argument that in this case, the conservation groups had not shown that they had “standing,” since the timber sale originally at issue in the case had been withdrawn by the Forest Service.  Leading a strong four-member dissent, Justice Breyer wrote that it was absurd to find, as Justice Scalia did, that the Sierra Club and the other conservation groups were not being harmed by the challenged regulation in other timber sales and other Forest Service actions.
                            
Conservationists lost on the narrowest of reasons, but still the Bush administration’s regulations that eliminated the public’s ability to comment on and appeal major U.S. Forest Service actions, such as commercial timber sales, oil and gas development and off-road motorized vehicle use are reinstated.  However, with the limited nature of the Court’s ruling, the regulation can again be challenged.

Background
The Bush administration unsuccessfully tried to create a backlash against conservationists and the original ruling by holding up permits for minor activities such as nut-gathering, mushroom-picking and hunting expeditions for people with disabilities, blaming it on the ruling. The administration even went so far as to say the ruling would prevent the cutting of the Capitol Christmas Tree. As noted in a 2005 Washington Post editorial, after the judge made clear that the Forest Service was again acting illegally, this case “should lead to more questions about the real motives of the agency that allegedly protects the nation’s forests.” (The Washington Post, Forest Service Sulk, editorial, 10/24/05)

Click here to read the decision (pdf).

Click here to read extensive case history.

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