Tuesday, March 3, 2009
The Supreme Court today issued a sharply divided (5-4) opinion holding that respondents lacked standing to challenge U.S. Forest Service regulations exempting the Service from notice, comment, and appeal processes for fire-rehabilitation and salvage-timber sales that the Service itself determined would not produce a significant environmental impact. I previously posted on the case here.
Respondent organizations argued that the regulations violated federal law requiring the Service to "establish a notice and comment process" and a procedure for filing an administrative appeal for "proposed actions . . . concerning projects and activities implementing land and resource management plans . . . ." The federal law does not include an exception--or a delegation to exempt--projects that do not produce a significant environmental impact; the Service unilaterally wrote the exception into its regs.
Justice Scalia wrote for himself, Chief Justice Roberts, and Justices Kennedy, Thomas, and Alito that respondent organizations lacked standing as to a particular exempted project--the Burnt Ridge Project, a salvage timber sale on 238 acres damaged by fire--because the parties had settled that case:
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 (here, the regulation in the abstract), 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 was no more persuaded by the respondents' standing claim based on future injury. Justice Scalia wrote that the respondents failed to claim an imminent harm:
This vague desire to return [to the forested area] is insufficient to satisfy the requirement of imminent injury: "Such 'some day' intentions--without any description of concrete plans, or indeed any specification of when the some day will be--do not support a finding of the 'actual or imminent' injury that our cases require."
Respondents' uncontroverted claims about its membership and the Service's regulations on them fell flat: Justice Scalia wrote that the Court has an "independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties."
Justice Breyer wrote in dissent for himself and Justices Stevens, Souter, and Ginsburg that the respondents had pleaded plenty sufficient facts to allege a "realistic likelihood" of future harm.
The case will make it easier for agencies to dodge judicial review of illegal regulations simply by settling cases, thus putting plaintiffs in a particularly difficult position: To win the immediate case, they have to settle; but to settle means losing the larger claim. And the tight standing requirements--"imminent" not "realistic likelihood" of harm, and judicial skepticism of groups' uncontroverted assertions about the size and scope of, and harm to, their own memberships--will make it tougher for groups like Earth Island Institute to get federal court attention for their claims.