Blocked Challenges to Federal Regulations

Blocked Challenges to Federal Regulations



October 9, 2008  - The U.S. Supreme Court on 
Wednesday appeared sympathetic to a legal position held by the Bush 
administration that would limit environmentalists and other public 
interest groups from challenging federal regulations. 
The case centers on a dispute over rules imposed by the U.S. Forest 
Service, but legal experts contend the court's ultimate decision could 
have far-reaching impacts and make it nearly impossible for many 
individuals and third parties to contest rules enacted by federal 
agencies. 
The origins of the case lie in regulations enacted by the Bush 
administration in 2003 that limited some federal timber sales and logging 
projects from the agency's usual notice, comment and appeal procedures. 
The 2003 Forest Service rules affected timber projects of less than 250 
acres and "forest thinning" projects of 1,000 acres or less. 
The agency applied these rules to a decision it made in September 2003 
authorizing a salvage timber sale in the Sequoia National Forest. The 
Burnt Ridge Project covered 238 acres of land burned in a massive fire 
that ravaged the California forest in 2002.

A coalition of environmental groups sued to block the sale. The Forest 
Service subsequently withdrew the sale and settled the case, but 
environmental groups challenged the underlying regulations, arguing the 
Bush administration violated the Forest Service's Appeals Reform Act when 
it enacted the rules. 
A U.S. district court sided with the environmental groups, blocking 
implementation of the regulations nationwide. 
The Ninth Circuit Court of Appeals upheld that ruling, prompting the Bush 
administration to appeal to the Supreme Court. 
U.S. Deputy Solicitor General Edwin Kneedler said the legal challenge 
should be dismissed because the original dispute over the Burnt Ridge 
Project has been settled. 
The environmental groups lack standing to challenge the underlying 
regulations, Kneedler told the court, because they only have the right to 
challenge specific implementations of the rules. 
Third parties must wait until a procedural rule is applied before 
challenging it, Kneedler explained, otherwise it is not "ripe" for review. 

"The procedural regulation does not cause the injury," Kneedler said. 
"It is the on-the-ground activity, the site-specific decision … the agency 
action approving the site-specific action that causes the injury. That is 
what the person is entitled to judicial review on." 
Further, Kneedler argued, the district court did not have the authority to 
impose a nationwide injunction on the regulations. 
Matt Kenna, an attorney with the Western Environmental Law Center 
representing the environmentalists, countered that the challenge to the 
rules was appropriate because "we can show that the regulations had been 
applied to a project and continued to be applied." 
"These are being applied to every forest on an ongoing basis," Kenna told 
the court. 
The court's conservative justices, including Chief Justice John Roberts, 
appeared unconvinced by Kenna's arguments. 
Other than the Burnt Ridge Project, the environmental groups had not 
pointed to any other "concrete action" affected the regulations, Roberts 
said. 
"It seems like a high hurdle for you to surmount," he told Kenna. "You 
haven't shown any standing with respect to the Burnt Ridge Project on an 
ongoing basis because that has been settled. It's outweighed - it's out 
the door." 
Justices Ruth Bader Ginsburg and David Souter were more sympathetic to 
Kenna's view and queried the deputy solicitor general's position. 
Souter suggested that the situation outlined by Kneedler would block 
challenges until after the decision in question, including a "quickie 
lumbering action," had been implemented. 
"If we do not find sufficient elasticity and standing to allow a challenge 
to the regulation … there will, in fact, be a preclusion of any challenge 
to a lot of specific actions," Souter said. 
Ginsburg echoed that concern, noting that the statute in question provides 
third parties the "right to notice, comment and administrative procedures" 
before a specific action is taken. 
The Bush administration in effect has cut such stakeholders "from that 
seat at the table," she added. 
"These are people who said, 'We are concerned about saving our forests,'" 
Ginsburg explained. “It doesn't do us any good after the project has been 
authorized. We want to be there when the decision is made to take action." 

Kneedler responded that blocking "facial challenges" to the rules did not 
shut such individuals out of the process. 
"These are people who pay very, very close attention to what the Forest 
Service is doing," he told the court. 
A host of stakeholders have weighed in on this case, known as Summers v. 
Earth Island Institute, signalling the possible broader ramifications of 
the court's ultimate decision. 
An array of industry groups, including organizations representing home 
builders, farmers, timber companies and the pesticide industry, have 
voiced support for the government's position, while public interest 
groups, environmental and administrative law professors and the state of 
California have favored the views of Earth Island Institute in the case. 
The Supreme Court is expected to issue a decision early next year.





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