Coming To The Supreme Court

Summers v. Earth Island Institute (07-463)

Earth Island Institute and other conservation groups sued the United States Forest Service after it authorized application of regulations 36 C.F.R. 215.4(a) and 36 C.F.R. 215.12(f) to a planned salvage logging project in the Sequoia National Forest. The conservation groups claimed that the regulations, which limit public notice, comment and administrative appeals, were invalid under the Administrative Procedure Act, which protects the ability of the public to appeal administrative actions. The parties settled the dispute over the regulations as they were applied to the salvage logging project, but the conservation groups continued the suit as a direct facial challenge to the regulations themselves. At issue before the Supreme Court in this case is whether judicial review of the regulations was proper, whether the conservation groups established standing and ripeness to challenge the regulations after settling the controversy over the regulations’ application to the specific project, and whether issuing a nationwide injunction was a proper remedy. The outcome of the case will influence federal agencies’ requirements to provide administrative appeals, the ability of the public to challenge administrative actions, and the scope of equitable remedies against improper applications of agency regulations....

Conclusion

This case rests on whether individuals may appeal agency regulations only as they are applied to specific agency actions, or whether individuals may challenge the validity of regulations without linking the challenge to a specific agency project. The Forest Service argues that under the APA, only as-applied regulations may be challenged. The conservation groups, on the other hand, argue that the APA supports direct, facial challenges to agency regulations. The Supreme Court’s decision will affect the rights of individuals to contest unlawful agency regulations and the scope of federal agencies’ responsibilities to provide administrative appeals. The decision will likely clarify the balance between agencies’ autonomy and their transparency toward the public, which will have ramifications for advocacy groups, industry members, and federal agencies.

Winter v. Natural Res. Def. Council (NRDC) (07-1239)

On March 22, 2007, the Natural Resources Defense Council ("NRDC") sued the United States Navy in the District Court for the Central District of California to enjoin the Navy from conducting training exercises off the coast of southern California. Specifically, the NRDC sought to prevent the Navy from using mid-frequency active ("MFA") sonar during these exercises because such use harmed whales and other marine mammals, in violation of several environmental laws. The District Court concluded in January 2008 that NRDC had proven that allowing the exercises to continue would cause near certain harm to the environment and issued a preliminary injunction. In response to the injunction, both the President and the Council for Environmental Quality ("CEQ") exempted the Navy from two environmental statutes, finding that emergency circumstances existed which allowed the training to continue. The District Court, however, found the exemptions were improper and upheld its preliminary injunction, and the Ninth Circuit affirmed. The Navy challenges this decision by arguing that courts below used too lax of a standard when deciding that a preliminary injunction was justified and that the judiciary improperly interfered with the executive branch’s authority to control the military. How the Supreme Court decides this case will not only reflect its view on balancing environmental protection and national security, but also clarify the roles each Federal branch has in these matters....

Conclusion

This case addresses an important question about the significance of environmental protection. The answer may hinge on the Supreme Court’s view of the balance among the three branches of government, and the extent of the executive branch’s authority over the military. Overall, the Supreme Court’s decision on the separation of powers will have implications beyond the immediate issue of environmental protection.