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WILDS ADVOCATES HOWL TOO MUCH OVER RULING

SHARE WILDS ADVOCATES HOWL TOO MUCH OVER RULING

A pitiful wail arose two weeks ago from environmentalists mourning a "calamitous" ruling of the U.S. Supreme Court. A careful reading of the several opinions suggests that things are not so bad after all. The decision may be a setback. It is not a disaster.

You would not believe this from the howls that arose. Half a dozen organizations complained bitterly that the high court's decision would mean the extinction of endangered species. If they couldn't sue, then no one would be able to defend the Florida dune mice from rapacious developers. Farewell, the Furbish lousewort! Goodbye, poor spotted owl!Come now. Dry your eyes. Consider the law, the facts and the precedents. Consider the division within the court.

Under the law, federal agencies must consult with the secretary of the interior whenever they plan actions that might jeopardize an endangered species. When Congress passed the act in 1973, it was generally understood that the act applied only to projects within the United States. In 1978 the government changed its collective mind: Consultation also would be required for U.S. expenditures anywhere on the globe.

In 1979 the government changed its mind again. It was back to square one. Consultation would be required only on matters within the United States or on the high seas. Several conservationist groups, led by Defenders of Wildlife, sued to restore the 1978 worldwide regulation. The suit went up and down the lower courts on issues of summary judgment, statutory interpretation and "standing." On June 12 the Supreme Court ruled for the government and against the Defenders.

Now for the facts. Two members of Defenders, Joyce Kelly and Amy Skilbred, served as plaintiffs. In 1986 Kelly visited Egypt, where U.S. funds were being spent upon the Aswan High Dam. She saw enough to convince her that the project jeopardized the Nile crocodile.

Skilbred had traveled to Sri Lanka. There the Agency for International Development (AID) is spending tax funds on a series of dams and hydroelectric plants on the Mahaweli River. She had hoped to see Asian elephants and leopards, but no luck. She feared for them and for the purple-faced langur, toque macaque, red face malkoha, Bengal monitor, mugger crocodile and python. Someday she intends to return to Sri Lanka, and she wants them protected.

Given the law and the facts, the high court turned to the precedents. Who has standing to sue the government? What is required for summary judgment?

Writing for the court, Justice Antonin Scalia first assumed (though he thought it questionable) that the two projects jeopardize the named species. Under the precedents, the two women must show that without a summary judgment they would suffer "imminent injury." They also must demonstrate that an injunction against the government agencies would redress the injury.

The plaintiffs advanced several theories by which a private conservation organization might have standing to sue. Scalia scorned all of them as "beyond all reason" and "pure speculation and fantasy." The two women could not show quite how they would be injured. In any event, injury was not "imminent." Merely to compel the State Department and AID to "consult" would not necessarily redress the supposed injury.

We are left with this. Given a case within the United States - a case in which biologists, herpetologists, ornithologists, botanists, lepidopterists, or just plain nature lovers who go regularly afield can plausibly demonstrate imminent injury - they likely will win 5-4.

Not all is lost. Conservationists in the United States may not be able to throw their weight around effectively in Sri Lanka or in Egypt, but they have plenty to keep them busy here at home. Given a better set of facts, they will get a better decision when next they go to court.