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U.S. Supreme Court Limits Rights of Environmental Groups to Challenge Federal Agency Decisions

March 5, 2009

In a 5-4 decision issued on March 3, 2009, the United States Supreme Court limited the circumstances in which environmental groups can challenge federal agency regulations. Summers v. Earth Island Institute, No. 07-0463 (Mar. 3, 2009). The case was brought by Earth Island Institute and other environmental groups (collectively, Earth Island), and challenged rules which exempt certain post-fire rehabilitation and salvage projects from public notice, comment, and administrative appeal procedures. Earth Island initially challenged the rules as applied to the Burnt Ridge Project in the Sequoia National Forest. It subsequently settled that claim, but sought to continue to pursue a facial challenge to the rules on grounds they violated requirements of the Forest Service Decisionmaking and Appeals Reform Act.

In the proceedings below, a federal District Court and the Ninth Circuit Court of Appeals agreed that Earth Island had standing to pursue its facial challenges to the rules, even though it settled the as-applied challenge to the Burnt Ridge Project after the complaint was filed. In an opinion authored by Justice Antonin Scalia, the Supreme Court reversed. Because the underlying project-specific challenge had settled, the Court held that affidavits submitted by Earth Island failed to sufficiently demonstrate that one of its members would imminently suffer a concrete and specific injury-in-fact – a mandatory requirement for Article III standing. In dissent, Justice Stephen Breyer countered that Earth Island’s affidavits established a “reasonable likelihood” that an Earth Island member would suffer harm in the near future.

Summers v. Earth Island Institute rolls back Ninth Circuit jurisprudence which arguably loosened standing requirements and permitted environmental groups to challenge federal regulations based on procedural injuries which “may yield diminished recreational enjoyment” of federal lands.[1] In order to clear the standing hurdle, plaintiffs’ procedural grievances (e.g., lack of appeal rights to certain projects), the Supreme Court said, must be coupled with an unambiguous, and actual or imminent harm such as concrete plans to visit a specific tract of public land that is subject to a project under the challenged regulations. The decision has implications well beyond these specific Forest Service rules in limiting the suits environmental plaintiffs may bring, as standing plays a central role in efforts to challenge agency actions and rules under federal environmental laws.

I. Background

In 1992, Congress enacted the Forest Service Decisionmaking and Appeals Reform Act (ARA),[2] which required the Forest Service to establish notice and comment and administrative appeal processes for proposed projects and activities which implement land and resource management plans.[3] On June 4, 2003, the Forest Service published regulations (the 2003 Regulations) implementing the ARA. Among other things, the 2003 Regulations exempted from the ARA’s notice-and-comment and administrative-appeal requirements those projects that were also categorically exempt from review under the National Environmental Policy Act (NEPA).[4] The validity of these regulations formed the basis of the dispute before the Court. The Forest Service subsequently established new NEPA categorical exemptions for post-fire rehabilitation projects of less than 4,200 acres[5] and post-fire timber salvage sales of 250 acres or less.[6] By establishing these NEPA categorical exemptions, the Forest Service also exempted conforming projects from the ARA’s public notice, comment, and appeal requirements under the 2003 Regulations.

Shortly after establishing the new post-fire categorical exclusions, the Forest Service issued a decision memo approving a 238 acre post-fire salvage sale in the Sequoia National Forest. Applying the new NEPA categorical exclusions and the 2003 Regulations, the Forest Service’s decision memo concluded that the Burnt Ridge Project was not subject to appeal under the ARA.

On December 1, 2003, Earth Island filed a complaint in the U.S. District Court for the Eastern District of California challenging both the 2003 Regulations as applied to the Burnt Ridge Project and the validity of the 2003 Regulations themselves. To demonstrate standing, Earth Island filed affidavits alleging that an organization member, Ara Marderosian, had repeatedly visited the Burnt Ridge area, had imminent plans to do so again, and would be injured if the project went forward without an opportunity for his comment. Earth Island also filed the affidavit of another member, Jim Bensman. The affidavit stated that Bensman had visited numerous National Forests and had plans to visit unidentified National Forests in California and elsewhere later that year. Bensman’s affidavit further stated that the 2003 Regulations had prevented him from appealing a number of unspecified timber sales.

The parties eventually settled their dispute regarding approval of the Burnt Ridge Project, and Earth Island dismissed its “as applied” challenges with prejudice. With respect to the remaining facial challenges to the 2003 Regulations, the Forest Service argued that, as a result of the settlement, Earth Island lacked Article III standing because its members were no longer threatened with an injury-in-fact. The Forest Service also argued that Earth Island’s claims were no longer ripe because there was no longer a dispute over a particular project. Rejecting these arguments, the District Court invalidated a portion of the 2003 Regulations, including the public notice, comment, and appeal provisions.[7] The District Court also issued a nationwide injunction prohibiting the Forest Service from applying the invalidated rules.

On appeal, the Ninth Circuit partially affirmed the District Court’s decision.[8] The Ninth Circuit found that Earth Island had standing to pursue its procedural injury claims, even though its “as applied” challenges to the Burnt Ridge Project were mooted by the settlement. The Ninth Circuit based its standing decision on the Bensman affidavit, noting that his “preclusion from participation in the appeals process may yield diminished recreational enjoyment of the national forests.” The Ninth Circuit went on to uphold the District Court’s decision with respect to the provisions of the 2003 Regulations that were applicable to the Burnt Ridge Project (i.e., the notice, comment, and appeal exemptions), on grounds that they conflicted with the ARA’s plain language. The Supreme Court subsequently granted the Forest Service’swrit of certiorari.

II. The Supreme Court’s Decision

Writing for the majority, Justice Scalia held that Earth Island lacked standing to pursue its facial challenges to the 2003 Regulations. The Court specifically held that the Marderosian and Bensman affidavits failed to establish a concrete and particularized injury. To satisfy Article III standing requirements, a plaintiff must demonstrate that it has suffered an injury-in-fact that is both concrete and specific and actual or imminent. The injury must be fairly traceable to the challenged action, and it must be likely that the injury will be redressed by the requested relief.[9] Organizations can satisfy the “concrete and particularized injury” requirement by demonstrating that the recreational or aesthetic interests of one of its members will be affected.[10]

The Court first held that the Marderosian affidavit did not establish an injury-in-fact. In the affidavit, Marderosian claimed an injury-in-fact based on prior visits to the Burnt Ridge area, as well as imminent plans to return. The Court, however, noted Marderosian’s “injury in fact with regard to that project has been remedied” in light of the settlement with Earth Island.[11] The Court further stated:

We know of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action … apart from any concrete application that threatens imminent harm to his interests. Such a holding would fly in the face of Article III’s injury-in-fact requirement.[12]

The majority next disagreed with Earth Island’s contention that the Bensman affidavit established a concrete-and-specific injury. The Court first noted that the Bensman affidavit failed to identify the Burnt Ridge Project or any other specific timber sales that were subject to the 2003 Regulations. The affidavit also failed to identify concrete and specific plans to visit National Forest areas that would be impacted by such projects. According to the majority, without such specification, a court is unable to tell what projects are unlawfully subject to the regulations and whether Bensman may suffer a recreational or aesthetic injury by encountering them during visits to National Forests.[13] “Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact.”[14]

The Court next rejected the Ninth Circuit’s determination that Earth Island had standing based on an alleged procedural injury. Earth Island contended that, as a result of the 2003 Regulations, it was denied the opportunity to comment on certain Forest Service projects, including the Burnt Ridge Project. The Ninth Circuit agreed, holding that the “preclusion from participation in the appeals process may yield diminished recreational enjoyment of the national forests.”[15] The Supreme Court, however, held that “deprivation of a procedural right without some concrete interest that is affected by the deprivation – a procedural right in vacuo – is insufficient to create Article III standing.”[16]

Because the Court resolved the case on grounds of standing, it declined to reach the merits of whether Earth Island’s challenges to the 2003 Regulations were ripe and whether a nationwide injunction was the appropriate remedy.

III. The Dissent

In dissent, Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg, took exception to the majority’s conclusion that Earth Island had only demonstrated a “conjectural or hypothetical” injury-in-fact. Citing to the Court’s landmark 2007 global warming decision, Massachusetts v. EPA, Justice Breyer argued that:

[A] threat of future harm may be realistic even where the plaintiff cannot specify precise times, dates, and GPS coordinates. Thus we recently held that Massachusetts has standing to complain of a procedural failing, namely, EPA’s failure properly to determine whether to restrict carbon dioxide emissions, even though that failing would create Massachusetts-based harm which (though likely to occur), might not occur for several decades.[17]

Justice Breyer argued that the affidavits submitted by Earth Island established a “realistic likelihood” that the challenged conduct (i.e., the prohibition on public notice, comment, and appeal of certain timber sales) had occurred in the past, would occur in the future, and would certainly result in harm to some of Earth Island’s members.[18] “These allegations and affidavits more than adequately show a ‘realistic threat’ of injury to plaintiffs brought about by reoccurrence of the challenged conduct – conduct that the Forest Service thinks lawful and admits will reoccur.”[19]

In his majority opinion, Justice Scalia explicitly rejected these arguments, suggesting that the dissent “proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of the members are threatened with concrete injury.”[20] While recognizing that it is possible (or even likely) that one of Earth Island’s members will suffer an injury-in-fact in the future, Justice Scalia concluded that “speculation will not suffice. Standing … is not an ingenious academic exercise in the conceivable … [but] requires … a factual showing of perceptible harm.”[21]

For more information, please contact any member of Marten Law Group’s Environmental Litigation practice group.

[1] Earth Island Inst. V. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007) (emphasis supplied).

[2] Pub. L. No. 102-381, Tit. III, 106 Stat. 1419 (16 U.S.C. § 1612 note).

[3] ARA § 322(a).

[4] 36 C.F.R. §§ 215.4(a) and 215.12(f). See also 68 Fed. Reg. 33,582 (June 4, 2003).

[5] 68 Fed. Reg. 33,814 (June 5, 2003) (codified at Forest Service Handbook 1909.15, ch. 30, §§ 31.2(10), (11)).

[6] 68 Fed. Reg. 44,598 (July 29, 2003) (codified at Forest Service Handbook 1909.15, ch. 30 §§ 31.2(12), (13), and (14)).

[7] Earth Island Inst. V. Ruthenbeck, CV 03-6368-JKS, 2005 WL 5280466 (Sept. 20, 2005).

[8] Earth Island Inst. v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007).

[9] Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

[10] Sierra Club v. Morton, 405 U.S. 727, 734-36 (1972).

[11] Slip Op. at 5-6.

[12] Slip Op. at 6.

[13] Slip Op. at 7.

[14] Slip Op. at 7.

[15] Earth Island Inst., 490 F.3d at 693.

[16] Slip Op. at 8.

[17] Dissent at 5-6 (emphasis in original) (citing Massachusetts v. EPA, 549 U.S. 497, 522-23 (2007)).

[18] Dissent at 5-7.

[19] Dissent at 10 (emphasis in original).

[20] Slip Op. at 9.

[21] Slip Op. at 11 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 566 (1992) (internal quotations omitted).

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