Supreme Court narrows standing in 5-4 environmental ruling

The Supreme Court held 5-4 that environmentalists lacked standing to challenge the Forest Service’s regulations for approving timber sales, in the absence of affidavits from particular members showing concrete plans to visit specific federal lands to which the regulations are actually being applied.

Speaking for the Court, Justice Scalia also said that plaintiffs could not file new affidavits after a judgment in their favor to establish standing. The Court did not resolve the appropriateness of a nationwide injunction as a remedy for possibly invalid Forest Service regulations. Concurring, Justice Kennedy suggested that Congress could have given plaintiffs standing here. Justice Breyer dissented with Justices Stevens, Souter and Ginsburg. Summers v. Earth Island Instit., --- S.Ct. ----, 2009 WL 509325, U.S., March 03, 2009 (NO. 07-463).

 

Under the Forest Service Decisionmaking and Appeals Reform Act, Pub.L. 102-381, note following 16 U.S.C. § 1612, the Forest Service must follow a notice, comment and appeal process for proposed land management activities. Yet last year the Service adopted a rule exempting some smaller-scale activities, such as salvage-timber sales of 250 acres or less, from these procedural requirements. 36 CFR §§ 215.4(a). Pursuant to this rule, the Service approved the Burnt Ridge Project, a salvage sale of 238 acres, without observing the statutory procedures. Environmental groups sought to enjoin that sale. Fearing that the Service would use its rule to circumvent the Act by making many sales under the 250-acre threshold, they also sought a nationwide injunction to stop the use of the rule for other projects. The Government settled over Burnt Ridge, but the district court went on to hold the regulations invalid and issue a nationwide injunction. Only afterward did the Government challenge the groups’ standing, at which point they filed additional affidavits.

 

The Court said that once the Burnt Ridge matter was settled, the plaintiffs could no longer challenge the regulations because they failed to point to any other application of them.

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 (here, the regulation in the abstract), 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.

The court complained that in their pre-judgment affidavits, the plaintiffs “fail[ed] to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of [plaintiffs’ members] to enjoy the National Forests.” While one member stated that he “want[s] to” visit particular projects in the Alleghany National Forest that are subject to the regulations, the Court said this was insufficient because the member did not assert “any firm intention” to visit there. Without such specifics, plaintiffs could assert only “a procedural right in vacuo,” which is insufficient to create standing.

 

The Court refused to even consider plaintiffs’ post-judgment affidavits, saying litigants cannot seek to remedy a lack of standing “after the trial is over, judgment has been entered, and a notice of appeal has been filed.”

 

The Court further stated that it “makes no difference that the procedural right [at issue here] has been accorded by Congress” under the Appeal Reform Act, because “the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.”

 

Justice Kennedy joined the Court’s opinion in full, but added the view that the case “would present different considerations if Congress had sought to provide redress for a concrete injury ‘giv[ing] rise to a case or controversy where none existed before.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 (1992) (Kennedy, J., concurring in part). While in Kennedy’s view Congress has the power to define injuries that can create standing, in this case there was no statutory language indicating that “Congress intended to identify or confer some interest separate and apart from a procedural right.” Kennedy did not say how this view could be reconciled with the Court’s “hard floor” comment. Arguably, the two can be reconciled if the Court’s opinion is read as simply saying that a grant of a procedural right alone does not create injury, but could do so if Congress specifically said so.

 

The dissent was strongly critical of the majority’s parsimonious approach. They argued that in light of the plaintiffs groups’ hundreds of thousands of members, and the thousands of sites to which the Forest Service regulations would apply, group members’ interests in those lands would clearly be affected. Moreover, “a threat of future harm may be realistic even where the plaintiff cannot specify precise times, dates, and GPS coordinates.” See, e.g. Massachusetts v. EPA, 549 U.S. 497 (2007) (standing based on climate change that was likely to occur but might not occur for decades).

 

The dissent also argued that neither the Constitution nor any statute or rule barred the filing of post-judgment affidavits, and said that it was only natural for the plaintiffs to seek to bolster their standing when it was attacked for the first time following the judgment. According to the dissent, these affidavits did cite specific plans to visit specific sites affected by the regulations – and thus, apparently, would have met the majority’s requirements for standing.

 

The bottom line from the decision seems to be that when challenging a nationwide policy, plaintiffs need to identify at least one likely and still-disputed application of the policy, and at least one plaintiff whose concrete interests or plans will be affected by it. Even if such specific harms are overwhelmingly likely to occur, the court will not assume them without specifics. As one law professor notes, Earth Island “will make it easier for agencies to dodge judicial review of illegal regulations simply by settling cases, thus putting plaintiffs in a particularly difficult position:  To win the immediate case, they have to settle; but to settle means losing the larger claim.”