Tuesday, March 10, 2009

The Bush court sets back environmental litigation

The Bush environmental legacy won one and lost one on March 3. It lost when President Barack Obama scrapped last-minute regulations that had threatened to undercut the Endangered Species Act. The new Bush rules exempted any federal agency contemplating action that might jeopardize the recovery of an endangered species from consulting the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, arguing that the requirement consumed too much time. Consultation had been the rule before, and it is the rule again. Chalk one up for the tree huggers. But Bush’s legacy triumphed when his Supreme Court appointees joined for a 5-4 ruling against environmentalists who had challenged Forest Service regulations for small salvage logging projects in northern California and elsewhere. In Summers v. Earth Island Institute, the Court decided that the plaintiffs did not have standing to sue, limiting the opportunity for environmentalists to challenge government actions in the future. How great a blow to environmental litigants will this be? “My suspicion is it will be raised in countless cases,” says Earthjustice attorney Kristen Boyles. “The other side will say this is the end of environmental law as we know it.” Boyles doesn’t buy that. The Supreme Court ruled on Constitutional grounds. The ruling doesn’t undercut statutory provisions for citizen suits under the National Environmental Policy Act, the Clean Water Act, or other laws. And even the Constitutional concepts aren’t really new. The court has simply required more specificity. In the future, environmental plaintiffs can respond by getting more specific. Instead of saying they plan to visit a particular forest sometime in the future; they may name specific GPS coordinates and specific dates...Crosscut

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