Environment

By Kent Holsinger, Contributing Editor

On March 3, 2009, the U.S. Supreme Court issued a 5-4 opinion in Summers v. Earth Island Institute, et. al.  Plaintiffs, five environmental groups, challenged a 238 acre salvage timber sale in the Seqoia National Forest.  Citing the “proper--and properly limited--role of the courts in a democratic society,” Justice Scalia delivered the majority opinion which held plaintiffs had no standing to challenge the U.S. Forest Service regulations absent a showing of a concrete injury related to a particular project.  

Even though the timber sale matter was settled, the U.S. District Court went on to hear plaintiff’s claims and issued a nation-wide injunction against using expedited procedures on fire rehab and salvage timber sales.  The 9th Circuit court of appeals agreed and the U.S. Supreme Court reviewed the case.    

In 2003, Congress approved categorical exclusions to the extensive processes normally required with passage of the Healthy Forests Restoration Act.  The Act was designed to help mitigate against the risk of catastrophic wildfires.  Today, millions of acres of national forests are dead and dying in the West.  In Colorado, some 1.5 million acres of lodge pole pine trees have been killed by insect infestation.  This poses significant risks to communities, water supplies and wildlife.  For example, the 1996 Buffalo Creek fire and the 2002 Hayman fire incinerated everything in its path, baked soils to a hard crust and filled streams and reservoirs with ash-laden sediment.  The Wilderness Society, much like the plaintiffs in this case, opposed efforts to mitigate such fire risks in Colorado.     

In its decision, the Supreme Court limited the ability of environmental groups to bring facial challenges to rules where there is no concrete injury to plaintiffs and where there is an opportunity for future review for a particular project.  An allegation that a member of the groups planned to visit another national forest where timber salvage or fire rehab actions were proposed was held insufficient.  

Different standards apply to industry, and for good reason.  Industry groups may  challenge federal regulations due to economic burdens for compliance versus a risk of substantial penalties for noncompliance.  

Justice Breyer delivered a dissent, joined by Justices Stevens, Souter and Ginsburg.  Among other things, he alluded to the specter of global warming in regards to the threat of future harms.  

Here is a link to the Court’s decision: