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 appeals process.
    • 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 Forests.
  • 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 nationwide injunction.
      • 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.