Beveridge & Diamond
 

Supreme Court Toughens Standing Requirements for Environmental Plaintiffs

Beveridge & Diamond, P.C., March 5, 2009

On March 3, 2009, the United States Supreme Court held in Summers v. Earth Island Institute that five conservation groups lacked standing to challenge U.S. Forest Service (“USFS”) regulations that exempt small timber sales from the notice, comment, and appeal process used in more significant land management decisions.  2009 U.S. LEXIS 1769, Slip Op. No. 07-463 (U.S. March 3, 2009).  The majority’s opinion reinforces the Court’s jurisprudence limiting standing to sue for generalized grievances, and makes clear that claims based on a deprivation of procedural rights require “a concrete interest” that is affected by the deprivation in order to meet the minimum threshold for constitutional standing.  Summers, Slip Op. at 8.  Summers provides potent precedent to challenge the standing of environmental plaintiffs in citizen suits, Administrative Procedure Act cases,  and other federal litigation, requiring them to provide sworn evidence particularizing harm from the precise action challenged.

The case arose out of the September 2003 USFS approval of the Burnt Ridge Project, a salvage sale of timber on 238-acres of fire-damaged federal land.  The project was approved consistent with USFS regulations that exempted small sales from formal notice-and-comment procedures and an appeals process.  Earth Island Institute, Sierra Club, and other conservation organizations brought a facial challenge to the regulations and to the Burnt Ridge project itself, arguing the exemption violated the 1992 Appeals Reform Act, which requires the USFS to provide a notice, comment, and appeals process for all land and resource management plans.  The District Court granted a preliminary injunction as to the sale, and the parties then settled over the Burnt Ridge dispute.  However, despite the settlement, the District Court proceeded to hear the merits of the plaintiffs’ challenges and invalidated the USFS regulations, issuing a nationwide injunction.  The Ninth Circuit affirmed this portion of the District Court ruling.

In the 5-4 decision, Justice Scalia wrote for the majority that the plaintiffs lacked standing because, “after voluntarily settling their portion of their lawsuit relevant to Burnt Ridge, respondents and their members are no longer under threat of injury from that project.”  Summers, Slip Op. at 2.  The Court emphasized that “[w]e know of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain 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.”  Id. at 6.  The majority also rejected plaintiffs’ affidavits claiming planned future visits to National Forests as too vague to show the threat of imminent harm.  Id. at 6-8.  Specifically, the Court the wrote that “we are asked to assume that not only will [affiant] stumble across a project tract unlawfully subject to the regulations, but also that the tract is about to be developed by the Forest Service in a way that harms his recreational interests, and that he would have commented on the project but for the regulation.”  Id. at 7. 

Importantly, Summers refused the Sierra Club’s efforts to establish organizational standing based on a claimed statistical likelihood that many of its members would use forests impacted by the exceptions to the regulations for large timber sales.  The Court rejected “the organizations’ self-descriptions of their membership” and insisted on timely affidavits wherein “plaintiff-organizations makes specific allegations establishing that at least one identified member had suffered or would suffer harm.”  Id. at 9-10.

Finally, the Court held that the Burnt Ridge settlement precluded the plaintiffs’ standing based on procedural injury -- the allegation that they had been denied the ability to file comments on some Forest Service actions.  Justice Scalia wrote that Congress’ grant of a procedural right under the Appeals Reform Act does not loosen the standing requirement of a concrete injury.  Id. at 8.

Because the claims were dismissed on standing issues, the Court did not reach the important issue briefed in the case of whether the District Court exceeded its powers in issuing a nationwide injunction.  The holding nonetheless sharply limits standing in citizen suits based on a procedural deprivation absent a showing of an affected concrete interest, and requires heightened scrutiny of claims of organizational standing.

For further information, please contact Jimmy Slaughter at (202) 789-6040, jslaughter@bdlaw.com or Hal Segall at (202) 789-6038, hsegall@bdlaw.com.  This alert was prepared with the assistance of Bina R. Reddy.

To read the full court opinion, click here.