March 18, 2013
Today the Supreme Court granted certiorari in one case of interest to the business community:
National Environmental Policy Act—Scope of Government’s Obligations—Standing and Ripeness
The National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq., requires federal agencies to prepare a detailed environmental-impact statement informing other agencies and the public about the reasonably foreseeable environmental consequences of any “major Federal action[] significantly affecting the quality of the human environment.” 42 U.S.C.§ 4332(2)(C). In Summers v. Earth Island Institute, 555 U.S. 488, 490-97 (2009), the Supreme Court held that environmental organizations lack Article III standing to challenge Forest Service regulations excluding certain activities from review under NEPA, unless there is “a live dispute over a concrete application of those regulations.” The Court ruled that an affidavit from an environmental organization’s member stating an intention to visit national parks in the future did not demonstrate a live dispute. Id. at 495.
Today, the Supreme Court granted certiorari in United States Forest Service v. Pacific Rivers Council, No. 12-623, to decide: (1) whether Pacific Rivers Council has Article III standing to challenge Forest Service amendments to plans governing the management of several Sierra Nevada forests; (2) whether PRC’s challenge to the amendments is ripe; and (3) whether the Forest Service has a duty under NEPA to perform environmental-impact studies when it makes broad (as opposed to site-specific) amendments to plans for managing national forests.
To address fire risks in the forests of the Sierra Nevada, the Forest Service issued significant, programmatic amendments to its management plans for those areas, and corresponding environmental-impact statements, in 2001 and 2004. Dissatisfied with the Forest Service’s analysis of the effects of the 2004 amendments on fish and amphibian species, PRC challenged the adequacy of the agency’s supplemental environmental-impact statement under NEPA and the Administrative Procedure Act. The district court granted summary judgment to the Forest Service, holding that the agency’s analysis was not arbitrary or capricious.
A divided panel of the Ninth Circuit reversed in part and remanded. The court determined that PRC has Article III standing based on allegations that a member of the organization frequently hikes and climbs in the Sierra Nevada, that some PRC members live in California, and that many PRC members visit the Sierra Nevada for recreation activities. The court distinguished Summers on the ground that the plaintiffs in that case “had not shown any realistic likelihood that they would come into contact with th[e] parcels” of land at issue, whereas “[t]here is little doubt that members of [PRC] will come into contact with affected areas.” 689 F.3d 1012, 1023 (9th Cir. 2012). On the merits, the Ninth Circuit held that NEPA requires both broad and site-specific environmental-impact statements, analyzing potential environmental consequences of a proposed change to a management plan, as soon as it is reasonably possible to conduct a study. The court then concluded that the agency’s analysis of amphibians complied with NEPA but the analysis of fish did not.
This case is of general interest to businesses affected by challenges to agency regulations. By permitting PRC to question the validity of the Forest Service’s amendments to the Sierra Nevada management plans without showing that PRC members would come into contact with any particular forest affected by the amendments, the Ninth Circuit opened the door to more frequent and more generalized challenges to agency regulations and policies. Businesses that operate under programmatic agency plans may also be interested in whether environmental studies must be performed at the programmatic plan stage or only when specific actions in accordance with the plan are proposed.
Absent extensions, which are likely, amicus briefs in support of the petitioner will be due on May 9, 2013, and amicus briefs in support of the respondent will be due on June 10, 2013. Any questions about the case should be directed to Tim Bishop (+1 312 701 7829) in our Chicago office.
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Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).
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