Summers v. Earth Island Institute
Supreme Court rules that environmental groups lack constitutional standing to challenge the application of U.S. Forest Service procedural regulations around the country after groups settle the part of their lawsuit tied to a specific, local application
Status: Final
Discussion & Analysis: Congress passed a law in 1992 requiring the U.S. Forest Service (USFS) to provide for public notice, comment, and appeal procedures for a variety of land and resource management actions—including fire-rehabilitation activities and salvage-timber sales. USFS enacted regulations providing that salvage-timber sales on 250 acres or less do not have a significant environmental impact and thus are categorically excluded from the law’s public participation requirements.
Following a 2002 fire in California, USFS approved the Burnt Ridge Project, a salvage sale of timber from 238 fire-damaged acres in Sequoia National Forest. Under its regulations, USFS did not provide for public notice, comment, or appeal. A coalition of environmental groups sued in federal district court, alleging that the regulations were illegal under the 1992 statute. The groups settled with USFS the portion of their lawsuit pertaining to Burnt Ridge, but pressed ahead with claims that the regulations were wholly unlawful and that USFS should not be allowed to apply them anywhere else in the United States in the future.
USFS then contested the environmental groups’ standing to continue the case, arguing that their challenge was no longer tied to a local, concrete application of the regulations. USFS also argued that the groups’ remaining claims did not meet the judicial test for “ripeness.” The district court found for the environmental groups and entered a nationwide injunction that barred the Service from applying the regulations. The Ninth Circuit upheld the lower court’s ruling.
The Supreme Court reversed, ruling 5-4 that the environmental groups lacked constitutional standing after they settled the dispute over the Burnt Ridge Project. Justice Scalia, writing for the majority, argued that the environmental plaintiffs had failed to establish “injury in fact” for their remaining claims; once Burnt Ridge was “off the table,” they could identify “no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members.” (Because the Court resolved the case on standing grounds, it did not reach USFS’s other two main arguments: that the claims against it were not “ripe,” and that the nationwide scope of the district court’s injunction was improper.)
In dissent, Justice Breyer argued that the requirement that a harm be “imminent” for standing purposes means only that the harm cannot be “conjectural or hypothetical,” or “otherwise speculative.” He concluded that the environmental groups had easily cleared this constitutional hurdle, even if they could not say which particular parcels of land would be affected by future USFS projects, and therefore affect the group’s members. “To know, virtually for certain, that snow will fall in New England this winter is not to know the name of each particular town where it is bound to arrive,” Justice Breyer wrote. “The law of standing does not require the latter kind of specificity. How could it?”
The Supreme Court’s decision contains an important procedural wrinkle. The majority declined to consider what it deemed “late-filed” affidavits, submitted by the environmental groups to support standing after the district court had entered judgment in the case. The dissent countered that the timing of the environmental groups’ submission, which was in response to the standing challenge by USFS, was “perfectly . . . sensible.” The barred affidavits described a number of then-pending USFS projects, all excluded by regulation from public notice, comment, and appeal, and all scheduled to occur on parcels of land used by members of the environmental groups.
It is unclear what the Summers ruling will mean for the future of Article III standing. At a minimum, the decision suggests that environmental and other public-interest groups bringing impact litigation must use extreme care in deciding whether and when to settle certain claims; when they do, they must retain evidence of standing sufficient to support any remaining claims. Perversely, Justice Scalia’s opinion makes clear that although standing may be challenged at any time, it cannot be supported at any time through the submission of new affidavits and other evidence. This will likely drive up litigation costs for public-interest environmental plaintiffs by forcing them to spend more time and resources ensuring that they are insulated against standing challenges at all stages of litigation; it also encourages defendants to ambush these plaintiffs with post-judgment challenges to standing.
The Summers ruling, however, could have more than tactical consequences. A five-justice majority now squarely rejects an approach to organizational standing that is based on the “statistical probability that some . . . members are threatened with concrete injury.” This reasoning undercuts methods of establishing standing in lawsuits where public interest groups challenge agency actions that increase the likelihood of harm to the groups’ members (see, e.g., “increased risk of harm” cases in the D.C. Court of Appeals). Is the Summers majority indicating that increased risk of harm must be tied to a specific member of an organization, rather than the organization as a whole? Or would it go further and declare that a mere increase in the risk of harm, whether to an individual or an organization, is no injury at all? Whether the fallout from Summers turns out to be minimal or expansive, it presents yet another constitutional hurdle for citizens seeking to ensure that the government complies with environmental laws.
Key Opinion: Summers v. Earth Island Institute , 555 U.S. __, 2009 WL 509325 (Mar. 3, 2009).
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