Superferry oral arguments

A good amount of oral argument was devoted to the question of whether plaintiffs had standing to bring suit asking that an environmental study be required. There was a lot of discussion about whether plaintiffs suffered a 'harm in fact' or whether they could claim procedural harm and proceed as citizen litigants. (In this regard, plaintiffs argued that they were deprived of their procedural rights as members of the public to receive notice and make comment - rights they would have enjoyed had an environmental assessment been required). I don't know if a written decision will eventually be issued but, of course, the Court's order provides no discussion of its standing analysis aside from the obvious implication that it decided plaintiffs indeed had standing.

The arguments on the substantive issues were less clear to me than even those on standing. Of course, it's much easier to follow these things from briefs than from oral arguments which, aside from being necessarily short and general, are usually knocked off track early on by a barrage of questions from the justices. I'm left wondering what the scope of an environmental assessment will be. Will it be confined to the actual physical improvements required for the ferry service, or will it extend to such issues as the potential harm to marine life alleged by the plaintiffs? No doubt it will at the very least give rise to more litigation which, for a court watcher, is great. (It's not too bad for the lawyers either).

Addendum: There was also some back and forth about what standard of review ought to apply. (Defendants made the interesting point that the standard in the first place, at the level of appeal from the agency decision, ought to have been whether or not the agency abused its discretion when it declined to require an environmental assessment). Here the Court said the lower court was erroneous as 'a matter of law,' the practical effect being the Court didn't have to pay the lower court any deference at all.