Justiciability and Summers v. Earth Island Institute

The Court heard oral arguments yesterday in Summers v. Earth Island Institute, a case dealing with standing, ripeness, and mootness in a facial challenge to agency procedural rules.  The plaintiffs originally brought two types of claims: Plaintiffs challenged the Forest Service's Burnt Ridge Project, a proposed timber sale in the Sequoia National Forest; and they challenged the validity of Forest Service regulations that exempt certain Forest Service actions, including the Burnt Ridge Project, from administrative notice, comment, and appeal procedures.

The parties settled the first set of claims, dealing with the Burnt Ridge Project.  But the government then argued that plaintiffs' facial challenge of the Forest Service regulations was nonjusticiable: the plaintiffs lacked standing, claimed the government, because they merely alleged an inability to participate in governmental decisionmaking (and not a sufficient cognizable injury); and the claim was not ripe, because plaintiffs didn't wait for the Forest Service to apply the regulations in a concrete setting--that the case was a preenforcement challenge.  Plaintiffs argued that they had standing and that their claim was ripe when filed (because of the their harm from the Burnt Ridge Project), and that it is ripe now (because the Forest Service continued to apply the regulations to other projects).

The argument transcript is here; check out pages 26 to 52 (the plaintiff-respondents' argument) for nice exchanges on standing.  Several law professors filed an amicus, which puts the justiciability issues into particularly good focus.

SDS