Summers v Earth Island Institute (2009)
Facts:
Respondents, including the Earth Island Institute, are a group of organizations who are
dedicated to protecting the environment. In 2003, the U.S. Forest Service approved the Burnt
Ridge Project, a salvage sale of 238 acres of fire-damaged land, and proceeded to declare such a
sale categorically exempt from the “notice, comment, and appeal” regulations set forth in the
Forest Service Decision Making and Appeals Reform Act (ARA) of 1992. The ARA requires the
Forest Service to establish an administrative appeals process providing an opportunity for notice
and comment. Prior to the Burnt Ridge Project, the Forest Service amended the ARA’s
regulations to categorically exclude salvage-timber sales of 250 acres or less from this
administrative appeals process. The respondents filed suit once the Forest Service failed to
provide notice, a period of public comment, or an appeals process for the Burnt Ridge Project.
Procedural History:
The District ruled in favor of the plaintiffs and issued a nationwide injunction against the Forest
Service’s regulations. The two sides had then settled on a sale.The Ninth Circuit of the U.S.
Court of Appeals affirmed, but also held that challenges to other regulations not at issue in that
project were not ripe for adjudication. The Forest Service was granted certiorari to the Supreme
Court on the grounds that the Ninth Circuit, in invalidating the regulations, had overstepped its
boundaries and the plaintiffs did not have standing because the case was not yet ripe for judicial
review.
Issues:
Do the respondents have Article III standing to challenge the U.S. Forest Service’s
exclusion of the Burnt Ridge Project from the regulations of the Forest Service Decisionmaking
and Appeals Reform Act?
Have the plaintiffs demonstrated that the regulations in section 215 of the Appeals
Reform Act are ripe for review under the Administrative Procedure Act?
If the respondents in this case prevailed, would a nationwide ban of the exclusion of
small-scale lumber sales from regulations under the Appeals Reform Act be appropriate?
Holding:
No. Respondents’ must have a concrete interest affected by a procedural injury in order
to create Article III standing. Respondents lack standing to challenge the regulations still at issue
absent a live dispute over a concrete application of those regulations.
The court did not reach this question because it resolved the case on the ground of
standing.
The court also did not address this question because it resolved the issue of standing.
Judgement:
5-4; Reversed in part and affirmed in part
Legal Reasoning:
Majority Opinion: Written by Justice Scalia; joined by Roberts, Thomas, Kennedy,
Alito
I.
II.
Background of the Case: explaining the facts, procedural history and Forest
Service policy at issue (the ARA)
Must determine if Earth Island has standing for its challenges to regulations at
issue in the Burnt Ridge Project
A. Article III of the Constitution limits judicial power to extend only to “cases”
and “controversies” that imminently threaten injury to persons caused by
violation of law.
1) Earth Island Institute identifies no application of the challenged
Forest Service regulations that can imminently and concretely threaten
harm to its members’ interests.
2) Earth Island voluntarily settled a part of their lawsuit pertaining to
any alleged members’ interests after the initial District Court ruling
a. Court cannot identify any precedent where a plaintiff retains
his standing to challenge the lawfulness of a regulation after
the suit in which he initially brought the challenge has been
voluntarily settled
B. The regulations at issue here niether require nor forbid any action on the part
of the respondents.
1) These standards and procedures apply only to Forest Service
officials in project planning positions.
2) When plaintiffs are not themselves the objects of a government
action, standing to challenge such action is substantially more difficult
to establish
a. Respondents can only establish standing here if the application
of the challenged regulations by the government affects them in
an imminently harmful and concrete manner.
C. The only application of the invalidated regulations that the respondents have
cited, besides the affidavit involved in the settlement, is the affidavit of Jim
Bensman.
1) Bensman asserted that he had suffered “injury in the past” from
development on Forest Service Land; did not suffice in Court because:
a. It was not tied to application of the challenged regulations
b. It does not identify any particular site
c. It relates to past injury rather than imminent future injury that
is sought to be prevented by the respondents
D. No evidence given to show respondents’ members planned to visit areas
where the challenged regulations of the Forest Service could be applied in a
manner harmful to a particular member’s interests.
1) Respondents alleged procedural injury to their concrete interests in
their challenge to the Burnt Ridge Project, but the regulations of the
Burnt Ridge Project are no longer an issue because the respondents
lack standing for a case.
III.
2) Respondents lacked Article III standing to bring this suit initially
because they cannot show that their members face a threat of suffering
“injury in fact” that is concrete and imminent.
Addressing the errors of the dissent’s “test” and argument
Concurrence: Written by Kennedy
I.
Joined the opinion of the court in full
a. Congress has not given organizations the power to address problems in the
absence of factual circumstance; such a power would change the
considerations of the case in Kennedy’s view.
b. A procedural injury must “impair a separate concrete interest” in order to
grant a party standing
i. “Nothing in the statute at issue indicates that Congress intended to
confer or identify some interest separate and apart from a
procedural right”
Dissent: Written by Breyer, joined by Stevens, Souter, and Ginsburg
II.
Disagreed with the majority’s finding that Earth Island Institute failed to show it
suffered “concrete injury” from the challenged regulations of the Forest Service.
a. There was in fact injury because Breyer believed there would be future
salvage sales such as the Burnt Ridge Project.
b. The allegations and affidavits of the respondents show a “realistic threat”
of injury to the plaintiffs if the challenged regulations occur and reoccursomething the Forest Service admits is possible.
i. In this case, Breyer would find that the respondents have standing.
Relation to Other Cases, Precedent:
Precedent case Los Angeles v Lyon upholds the government policy of ‘plaintiffs have no
standing.’ My case also upholds the government policy of ‘plaintiffs have no standing’, and
together they fit into box D of the Van Geel chart, “expanding area of permissible actions.”
Source(s) of Law:
Section 215 of the Forest Service Decisionmaking and Appeals Reform Act; Article III
section 2 of the Constitution