Summary of a Recent
Judicial Development in
Environmental Law

Plaintiffs Lack Standing to Challenge Forest Service Regulations

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009), the United States Supreme Court held that environmental organizations lacked standing to challenge U.S. Forest Service regulations that exempted small salvage timber sales from the requisite public notice, comment, and appeal process because the organizations' members had not suffered concrete and particular injury sufficient to establish Article III standing.

Background

The U.S. Forest Service attempted to exempt a salvage sale of timber on fire-damaged federal land from the notice, comment, and appeal process set forth in the Forest Service Decisionmaking and Appeals Reform Act. Id. at 1145. Several environmental organizations challenged Forest Service regulations exempting small sales from those requirements, and the district court granted a preliminary injunction against the sale while it adjudicated the plaintiffs' claims. Id. at 1146. The court invalidated the notice and comment and the appeal provisions as contrary to law, and the Ninth Circuit affirmed. Id.

Arguments

The government argued that the plaintiffs lacked standing to challenge the regulations because its members had not suffered actual or imminent injury. Id.

Plaintiffs argued that they had standing because they had suffered procedural injury (i.e., they had been denied the opportunity to file comments). Id. at 1151.

Analysis and Holdings

The Supreme Court reversed and held that the plaintiffs had failed to establish the requisite concrete and particularized injury, noting that generalized harm to the forest or the environment alone is insufficient to create Article III standing. Id. at 1150-51. Four dissenting justices opined that the plaintiffs had standing to challenge the regulations because there was a statistical probability that some of the organization's 700,000 members would plan to visit the affected area and would suffer concrete harm as a result, so there was "a realistic threat" that the challenged activity would cause the plaintiff harm "in the reasonably near future." Id. at 1155-56.

The case was decided on March 3, 2009.