In a March 3, 2009 decision, the United States Supreme Court has limited environmental groups’ challenge of federal agency regulations based upon the standing of those groups to bring a civil action. Summers v. Earth Island Institute, No. 07-0463 (Mar. 3, 2009). The case challenged rules issued by the Forest Service under its Decisionmaking and Appeals Reform Act which exempts certain agency projects from public notice, comment, and administrative appeal procedures. The plaintiffs initially challenged the rules as applied to a specific project in the Sequoia National Forest. They settled that claim, but sought to pursue a facial challenge in the case to the rules themselves. The federal district court and Ninth Circuit Court of Appeal agreed that the plaintiffs, lead by the Earth Island Institute, had standing to pursue its facial challenges to the rules notwithstanding the settlement to the as-applied challenge. One such basis of standing was an alleged procedural injury arising from the groups’ inability to provide comments to Forest Service plans.
In an opinion authored by Justice Antonin Scalia, the Supreme Court reversed by a vote of 5-4. Because the underlying project-specific challenge was settled, the Court held that affidavits submitted by Earth Island failed to establish that any of its members would imminently suffer a concrete and specific injury-in-fact – a mandatory requirement for Article III standing. In order to demonstrate standing, plaintiffs’ claim of procedural harm (e.g., lack of appeal rights to certain projects), must be coupled with an unambiguous, and actual or imminent harm that was subject to a project under the challenged regulations. The decision has implications well beyond these specific Forest Service rules. The programmatic nature of the Forest Service rules under challenge are similar in many respects to the nationwide permits that the Corps of Engineers uses to approve fills constructed as part of coal mining operations.
I. The Facts of the Case
The Forest Service Decisionmaking and Appeals Reform Act (ARA), required the Forest Service to establish administrative processes, including notice and comment and rights of appeal, for proposed projects and activities that implement land and resource management plans. The Forest Service published regulations in June 2003 to implement the ARA. 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 NEPA). The Forest Service subsequently established new NEPA categorical exemptions for small-scale post-fire rehabilitation projects and post-fire timber salvage sales. 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.
The plaintiffs filed suit in June 2003 challenging both the 2003 Regulations as applied to a specific project and the validity of the 2003 Regulations themselves. To demonstrate standing, Earth Island filed two affidavits alleging that one organization member had repeatedly visited the project site, had 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 who claimed to have visited numerous National Forests and had plans to visit unidentified National Forests in California and elsewhere later that year. The affidavit further stated that the 2003 Regulations had prevented him from appealing a number of unspecified timber sales.
The parties settled their dispute regarding approval of the project that was the subject of the “as applied” challenge, and it was dismissed 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.. Rejecting these arguments, The District Court rejected this defense and invalidated a portion of the 2003 Regulations, including the public notice, comment, and appeal provisions. On appeal, the Ninth Circuit partially affirmed the District Court’s decision. The Ninth Circuit found that Earth Iland had standing to pursue its procedural injury claims, even though its “as applied” challenge to the individual project was mooted by the settlement.
II. The Court’s Decision
Writing for the Court, Justice Scalia held that Earth Island lacked standing to pursue its facial challenges to the 2003 Regulations. The Court specifically held that neither of the affidavits established a concrete and particularized injury. To satisfy Article III standing requirements, the Court repeated what are now familiar requirements of standing. A plaintiff must demonstrate that it has suffered an injury-in-fact that is concrete, specific and actual or imminent. The injury must be fairly traceable to the challenged action. It must be likely that the injury will be redressed by the requested relief. 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.
The Court first held that the affidavit submitted to establish standing as to the specific project did not establish an injury-in-fact to a programmatic challenge. The Court noted that “injury in fact with regard to that project has been remedied” in light of the settlement with Earth Island. 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.”
The majority next disagreed with Earth Island's contention that the second affidavit testifying to a future intent to visit unspecified Forest Service locations established a concrete-and-specific injury. The Court first noted that the second affidavit failed to identify any 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 the affiant may suffer a recreational or aesthetic injury by encountering them during visits to National Forests. “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.”
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. The Ninth Circuit agreed, holding that the “preclusion from participation in the appeals process may yield diminished recreational enjoyment of the national forests.” 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.”
In his majority opinion, Justice Scalia explicitly rejected a test for standing proposed by Justice Breyer in his dissent, describing it as “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.” 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.”
The Supreme Court said little in the Earth Island decision that is new. What is interesting about the case, however, is the Court’s insistence that standing is a flexible concept that adjusts according to the nature of the claim asserted. Accordingly, there was no question that the Plaintiff’s affiant who alleged injury based on the specific project that was challenged and settled had standing as to that project. The same facts that provided standing as to the specific project challenged, however, were insufficient to create standing to challenge the rule generally. Moreover, the facts alleged in the second affidavit regarding the “procedural injury” were considered too speculative to establish any concrete injury to any specific person who was a member of the plaintiff group.
Much of the Clean Water Act litigation over the last decade has been comprised of programmatic challenges parading as challenges to specific individual permits or authorizations. Although standing affidavits can frequently be crafted by counsel for plaintiffs to meet the requirements of the injury claimed, the Earth Island opinions acts as a reminder that “a factual showing of perceptible harm” still remains the standard by which standing is judged. Moreover, the broader the claim of injury – such as the inability to provide comment on an agency action - the more difficult it may be to describe with particularity the concrete injury that an affiant suffers.
This article was authored by Blair M. Gardner, Jackson Kelly PLLC. For more information on the author see here.