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Last modified: Tuesday, March 3, 2009

Indiana law professor comments on Supreme Court decision in environmental case

EDITORS: IU Maurer School of Law Professor Robert Fischman is available to comment on today's Supreme Court action on Summers v. Earth Island Institute.

March 3, 2009

BLOOMINGTON, Ind. -- The U.S. Supreme Court today (March 3) refused to address the substantive merit of a lawsuit against the Forest Service by a coalition of environmental groups in Summers v. Earth Island Institute.

By a slim, 5-4 majority, the Court found the groups failed to demonstrate that they have standing to receive a hearing from the Court. Specifically, the majority of the justices decided that the members of the environmental organizations did not demonstrate that they were actually injured in a concrete way by the Forest Service's actions.

One of the organizations is Heartwood, a group that works to protect forests and support community activism related to Eastern Hardwood forests, with a focus on Indiana, Ohio, Illinois, Kentucky and Missouri.

The case involves a challenge to a Forest Service rule exempting certain kinds of logging from a law that requires the agency to provide notice, an opportunity for public comment, and an administrative appeal before proceeding with the logging. The two federal courts that reviewed the rule found it violated a 1992 statute enacted to safeguard public participation in national forest management.

Robert Fischman

Robert Fischman

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According to Indiana University Maurer School of Law Professor Robert Fischman, today's Supreme Court decision is a setback for responsive government. "It closes the doors of the courthouse to groups with meritorious claims, it encourages agencies to avoid interacting with groups that might bring important information and reasoning to the table, and it allows the Forest Service to act first and ask hard questions later," he said. "The law pretty clearly requires the reverse. Now the Forest Service can engage in 'salvage' logging in semi-secret. Often, by the time interested parties notice, the case is already moot because the logging is completed."

Fischman said the case permits federal agencies to play a shell game to evade judicial review of questionable decisions. An agency can withdraw a project when a court gets too close to invalidating the rules upon which the project approval was based.

"The case has significance beyond national forest management," he said. "Standing is an issue in almost all environmental litigation challenging agency compliance with federal law. In dismissing this challenge, the Court makes it more difficult for the judiciary to hear citizen suit challenges to agency actions."

On the other hand, the majority decision endorsed the longstanding principle that a recreational or even mere aesthetic interest of environmental group members is a sufficient basis to establish standing. "The dissent disagreed with the majority's view that the environmental groups did not show specific enough injury to gain standing," Fischman said. "In particular, the dissent argued that the plaintiffs in the suit demonstrated a realistic likelihood that salvage logging would recur and harm their interest. The Forest Service admitted that it intends to conduct thousands of further salvage-timber sales under the challenged rule that excludes public participation."

In particular, he said, the dissent criticizes the majority's approach with the following analogy: "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."

Justice Anthony Kennedy, who joined the majority in today's decision, had sided with today's dissenters in the 2007 Supreme Court decision allowing Massachusetts to challenge the EPA's failure to set standards for carbon dioxide under the Clean Air Act. In that case the harm from carbon-induced global warming involved projected sea level rise, a widely shared and somewhat speculative injury.

Fischman is a distinguished scholar whose articles have won recognition as among the most influential in environmental law. He is co-author of the leading casebook on public land and resources law. Fischman's book on management of the National Wildlife Refuge System has become the standard reference in the field. He has written on public land management, endangered species recovery, environmental impact analysis, federalism and global climate change. Fischman can be reached at 812-855-4565 or at