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Again With the Standing Dodge


It probably would not shock you to know that under the Bush administration the Forest Service sold timber for logging without the legally required notice, comment and appeal provisions because of a recent regulations declining to apply these requirements to smaller parcels of land. The government settled a suit brought by several environmental organizations, but seeing that these regulations could be re-applied in the future, the Ninth Circuit held that these regulations were illegal.

This being an environmental case, however, on Tuesday a 5-4 majority on the Supreme Court overruled the 9CA, holding that the groups did not have standing to challenge the legality of the regulations. Given the apparent long-standing “principle” of the Court’s conservatives that in marginal cases standing will be determined by whether or not granting standing will lead to results on the merits that the court’s conservatives will like, this outcome cannot be considered surprising. As Breyer argues in dissent, however, it’s difficult to defend:

These allegations and affidavits more than adequately show a “realistic threat” of injury to plaintiffs brought about by reoccurrence of the challenged conduct—conduct that the Forest Service thinks lawful and admits will reoccur. Many years ago the Ninth Circuit warned that a court should not “be blind to what must be necessarily known to every intelligent person.” Applying that standard, I would find standing here.

Hopefully, the Obama administration will address the immediate problem by acting to repeal the illegal regulation.

[X-Posted at TAPPED.]

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