Summers v. Earth Island Institute
555 U.S. ____ (2009)
Congress enacted the Appeals
Reform Act (ARA) (16 U.S.C. §1612), which required the US Forest Service to
provide both opportunities for notice and comments and an administrative
appeals process for all land and resource management plans.
In response, the Forest
Service promulgated new regulations (36 C.F.R. §215) that included an exemption for salvage timber
sales on less the 250 acres.
The Forest Service used §215 to exempt a sale of 238 acres of burnt forest
in the Sequoia National Forest from notice and comment or procedures or an
Basically, because of the
exemption, any environmental group that wanted to challenge the legality
of the sale was prevented from doing so.
Environmental groups, led by
Earth Institute sued, challenging the Forest Service regulation.
Earth Island challenged the
specific project in the Sequoia National Forest, and also made a facial
challenge arguing that the entire
regulation was a violation of the ARA.
Earth Island presented two
affidavits to establish standing.
One was from someone who liked to hike through Sequoia National Forest.
The second was from a guy who liked to travel to many different National
The Trial Court found for
Earth Island and issued a preliminary injunction. The Forest Service gave
up and settled with Earth Island, agreeing to write an Environmental
Impact Statement (EIS) for the Sequoia National Forest project.
Earth Island continued their facial
challenge against the ARA.
After the settlement, Earth
Island realized that the two affidavits they had provided to establish standing for the original Sequoia National Forest
project might not be sufficient to establish standing at all the other National Forests. So they
added a bunch of other affidavits from other people all over the country.
The Trial Court found for
Earth Island and issued a nationwide injunction against §215. The Forest Service appealed.
The Appellate Court affirmed.
The Forest Service appealed.
The US Supreme Court reversed
and found that Earth Island lacked standing to make a facial challenge to the regulation.
First, the US Supreme Court
threw out all of the affidavits that Earth Island presented after the
original case was settled.
The Court found that after
the case was settled you can't add more affidavits to the case.
The Court then found that
there was no organizational standing. The Court found that you have to
show individual, specific people who suffered injury in fact.
See Sierra Club v.
Morton (403 U.S. 727 (1972)).
The Court found that in
order to establish standing, you
have to provide specific instances of imminent harm. The Court found the
two affidavits were insufficient to show a harm that could justify a
Earth Island was left with
only the two original affidavits. The first one was specific to the
Sequoia National Forest (which was now settled), and the second was too
vague since it was about 'someday' wanting to visit a
yet-to-be-determined National Forest 'somewhere'.
See Lujan v. Defenders
of Wildlife (504 U.S. 555 (1982)).
In a concurrence, it was
argued that Congress had not given organizations the power to address problems
in the absence of factual circumstances.
It's not a constitutional
issue, Congress could give organizations this right if they wanted to.
In a dissent it was argued
that there was injury-in-fact since
the Forest Service has said that they intend to apply §215
to future sales. You don't need to show exactly which particular forest
is endangered, it is enough that it is likely to happen somewhere.