A few hours ago, the US Supreme Court dealt a blow to environmental groups. In a 5-4 decision, the Court said that environmental groups have no right to challenge government decisions unless they can show that they are directly impacted by their operation.
Since 1965, when environmentalists used the courts to prevent a power plant being built in New York State, the US has led the common law world on environmental litigation and the rights of interest groups to bring legal action against governments and corporations. The decision in Summers v Earth Island Institute — puts check on that progress and reflects the fact that the Supreme Court is split along clearly ideological lines, with the conservatives, courtesy of the Bush Administration which made two appointments to the Court John Roberts and Samuel Alito, being the dominant faction.
The Earth Island Institute, supported by the Sierra Club, an environmental group from California challenged the right of the US Forestry Service to exempt from environmental assessment timber salvaging operations and fire rehabilitation in a national forest area called Burnt Ridge. Members of the Institute claimed that they visit the national forest area in question to view flora and fauna and to walk, and therefore could be adversely affected by the Forestry Service’s decision.
Leading conservative Justice Antonin Scalia wrote the majority opinion, and was joined by the Chief Justice Roberts, Kennedy, Alito and Thomas. Scalia ruled that simply because a person wants to visit the Burnt Ridge forest area in the future does not give him or her standing to sue. “This vague desire to return is insufficient to satisfy the requirement of imminent injury: “Such ‘some day’ intentions — without any description of concrete plans, or indeed any specification of when the some day will be — do not support a finding of the ‘actual or imminent’ injury hat our cases require,” Scalia writes.
The minority view, written by Justice Stephen Breyer and supported by Justice Stevens, Justice Souter and Justice Bader Ginsburg, takes a more liberal approach to standing, and one that has been supported by a number of environmentally progressive states in the US, such as California.
According to Breyer, it is enough that an environmental group can show that its members recreational, scientific or aesthetic interests could be harmed somewhere in the affected forest area, at a future unspecified date. As he described it, “to know, virtually for certain, that snow will fall in New England this winter is not to know the name of each particular town where it is bound to arrive. The law of standing does not require the latter kind of specificity. How could it?”
The political dimensions of this latest US Supreme Court judgment are starkly evident. President Obama has an opportunity to radically shift the court from right to left during his first term of office if vacancies of the Court, which is likely, arise over the next few years. Environmentalists will no doubt be wishing that day to come sooner rather than later.
The Franklin Dam Case on standing 25 years ago was much in line with the explanation of the majority here – an interest has to be more than a general interest of a citizen. An economic concern like a tourism operator, or maybe affected neighbouring landowner. Admittedly the NSW Environment Court is meant to allow broader access by statute but then again the legal costs merry go round is quite brutal favouring the development industry generally. In other words pretty much the same result – unless you make money out of something you can’t really afford to litigate it. Very often the court in NSW operates as an extension of the economy rather than fulfill the promise of the 1979 reforms of public interest, though there are exceptions like a $400K fine for illegal clearing of an international wetland recently.