Chapter 10: Environmental Enforcement

STANDING TO CHALLENGE U.S. TIMBER SALE DECISIONS: SUMMERS v. EARTH ISLAND INSTITUTE

On October 8, 2008, the U.S. Supreme Court will hear oral argument in a case raising questions concerning the standing of environmental groups to challenge timber sale decisions by the U.S. Forest Service.  In June 2003 the Forest Service issued regulations exempting certain timber sales from public notice-and-comment and administrative-appeal requirements.  Earth Island Institute and other environmental groups brought suit to challenge the legality of this regulation and its application to a proposed timber sale in Sequoia National Forest in California.  After a federal district court issued an injunction prohibiting the timber sale, the Forest Service withdrew its proposal.  The portion of the litigation pertaining to the timber sale was then settled by the Forest Service agreeing that it would not again propose the timber sale without preparing an environmental assessment or an environmental impact statement.

The litigation then proceeded as a facial challenge to the regulations exempting certain timber sales from notice-and-comment and administrative-appeal requirements.  The district court held that the regulations were invalid in several respects and issued a nationwide injunction precluding enforcement of them.  This decision was affirmed in part and remanded in part by the Ninth Circuit. Earth Island Institute v. Ruthenbeck, 490 F.3d 687 (9^th Cir. 2007). The court upheld the standing of the environmental groups based on the affidavit of an Illinois resident that he intended to visit unidentified National Forests in California and that he had commented on nearly 1,000 Forest Service projects and appealed many Forest Service decisions.  The court stated that the exemption from notice and appeal requirements constituted sufficient “procedural injury” to demonstrate standing.  However, the court held that challenges to aspects of the regulations that had not yet been applied to timber sales were unripe for review. 

The Supreme Court will consider the question whether the facial challenge to the legality of the Forest Service regulations can survive the settlement of the site-specific challenge to the timber sale proposed pursuant to the regulations.  The Court is likely to consider whether the environmental groups have standing and whether the regulations are ripe for judicial review.