Wednesday, February 6, 2008

Lemon, et al v. Green (Dept. of Army)

Feb 5: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 06-5278. Plaintiffs live near and enjoy Fort Ritchie, a closed Army base in western Maryland. The Appeals Court said the only issues on this appeal are whether, as the district court ruled, plaintiffs lack standing to pursue claims regarding the disposition of Fort Ritchie under the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA), and whether the case became moot while the appeal was pending.

On the standing issue, the Appeals Court said, "...We think the court misperceived the nature of plaintiffs’ claim... Preparation of an environmental impact statement will never 'force' an agency to change the course of action it proposes. The idea behind NEPA is that if the agency’s eyes are open to the environmental consequences of its actions and if it considers options that entail less environmental damage, it may be persuaded to alter what it proposed... Countless lawsuits in which this court and others upheld a plaintiff’s standing were predicated on that understanding. The plaintiffs in some of those cases had standing because they lived -- as do the plaintiffs here -- near where the federal action would occur and would feel the environmental effects of that action if it went forward... it is clear that individuals in the same position as the plaintiffs in this case have standing to seek compliance with the impact statement requirement of NEPA. The Supreme Court recognizes as much, as do we. For similar reasons we believe plaintiffs had standing to pursue their claim under NHPA..."

On the mootness issue, the Appeals Court said, "A case becomes moot when 'intervening events make it impossible to grant the prevailing party effective relief... But all of the parties to the transaction are before the court. If unraveling the transfer is necessary after the district court decides the merits, it will be within the court’s power to do so... The case therefore is not moot. The judgment of the district court dismissing the action for lack of standing is reversed and the case is remanded for further proceedings."

Access the complete opinion (click here).

No comments: