On March 3rd, the Supreme Court issued its much awaited decision in Summers v. Earth Island Institute. This was the latest in a series of cases dating to the early 1990s where the central question has concerned citizen standing: will the courts allow a citizen to stand before a court to argue that government or private action violates the law?
In Summers, the environmentalists' challenge involved a few layers. The real legal challenge raised by the environmentalists was to regulations issued by the US Forest Service that largely eliminated opportunities for utilization of a notice, comment, and appeal process for actions designated by the Forest Service as small in size and therefore categorically exempt from these regulatory challenges ordinarily available for larger scale projects. The challengers asserted that these regulations violated statutory requirements. The challengers used a particular project, the Burnt Ridge Project in the Sequoia Forest, to show why they deserved to have standing due to how these regulations illegally precluded citizen input into and challenges to this Project. While the Burnt Ridge Project controversy continued, no challenge to standing was raised. After disputes over that particular project were settled, however, the government argued in court that the challengers had no standing. The challengers filed subsequent affidavits seeking to show their connections to other threatened forests. The Supreme Court, in an opinion by Justice Scalia (joined by Chief Justice Roberts and Justices Kennedy, Thomas and Alito), rejected the challengers' standing and hence rejected their ability to be heard in court. Justice Kennedy also filed a short, cryptic concurrence.
This case could have potentially far-reaching implications for environmental interests and others challenging allegedly illegal procedures instituted by the government. It may, however, be able to be limited due to the particular way the Burnt Ridge dispute was settled and the Summers opinion is written.
This case is a throwback to a 1992 opinion, also penned by Justice Scalia, in Lujan v. Defenders of Wildlife. In Lujan, Justice Scalia's opinion denied standing to citizens relying on the Endangered Species Act's "citizen suit" provision to challenge a regulation limiting the ESA's reach. The Lujan majority had focused almost completely on the absence of the sorts of injuries long recognized at common law – harms to money, tort harms, or harms to real property – and in so doing rendered it more difficult for environmental plaintiffs to sue even where they sued under "citizen suit" provisions in an underlying law. The case's broad language quite explicitly made it harder for regulatory beneficiaries and environmentalists to sue. The Lujan case was also a bit unclear regarding what constituted majority or plurality views on several key legal points due to a Justice Kennedy concurrence and lack of a majority on other parts of Scalia's opinion. Lujan had since been quite limited and clarified in Supreme Court decisions in cases referred to as Laidlaw, Akins (an important administrative law decision on standing) and Massachusetts v. EPA. Massachusetts was especially important, where the majority took Kennedy's concurrence language in Lujan and made it majority. That key language talked about standing not being limited just to injuries recognized under the common law tradition, but recognized that "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." Collectively, Laidlaw, Akins and Massachusetts v. EPA greatly limited Lujan, emphasizing Congress's power to recognize interests that will give rise to standing in the courts.
But the idea that subsequent precedents limited Lujan is only true if the Supreme Court itself takes the concept of precedent seriously. A Court that believed in the importance of precedent would always work to show how a new case conforms to developing case law and fits within a developing line of cases, or acknowledge tensions and either distinguish a case or overrule earlier precedents.
Summers, however, barely acknowledges these intervening changes in the Court's standing precedent. It pays little attention to the process Congress anticipated and that, the Respondents alleged, the Forest Service had circumvented when it eliminated opportunity for notice and comment on proposed sales of timber areas. It even raises higher the historically lower standing hurdles for "procedural standing" that the Court in Lujan had itself recognized. Summers seems to call for litigant links to tangible concrete harm, but such linkages can be difficult where the nub of the challenge concerns a procedural illegality that can play out by causing harms in hundreds or thousands of ways and places. In addition, Justice Scalia had, in Lujan, looked only for common law-like injury, but the key Kennedy concurrence had rejected that view, and Laidlaw, Akins and Massachusetts had even more clearly stated majority Supreme Court view that what counts as constitutionally adequate "injury" for standing purposes is shaped by the statutory interests at stake in a case. Massachusetts very clear stated that when, as mentioned above, it took Kennedy's Lujan concurrence language and put it in the Massachusetts majority opinion.
Summers, however, tries to roll the clock back, but without even acknowledging the contrary line of developing precedent. For the Court in Summers, Justice Scalia says "the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute." The Court found the late-filed affidavits unworthy of consideration and inadequate to confer standing. The dissent effectively points out how the majority's approach is seemingly inconsistent with earlier cases that allowed suit for "likely" harm, and also questions the majority's refusal to consider affidavits submitted in support of live portions of the case after the Burnt Ridge part settled.
So the case is a loss for its particular environmental plaintiffs, and harmful Forest Service regulations precluding citizen participation and comment remain on the books and will be difficult ever to challenge in the courts. We can hope that these Forest Service regulations will be revisited by the new leadership in Washington, even if judicial venues may be closed.
A possible silver lining exists. The Court's odd ignoring of contrary precedent and its justifications for denying standing create litigation uncertainties and grounds to limit the case's reach. Most importantly, the case should be greatly limited in its impact due to its substantial focus on the fact that the respondents initially pled their case by focusing on the allegedly illegal regulations' effect on their ability to comment on the sale of the Burnt Ridge Project. The Court emphasizes the lack of standing as justified because the parties had "settled their differences" so the injury was "remedied," which in turn (the Court says) means that there is no threatened "imminent harm" to challengers' interests. This language provides a strong argument that this case should only be applied where a challenge to illegal regulations lacks a link to a specific, live, concrete controversy over a particular affected interest. But the broader a regulation's impact, the harder it will be for someone to show such a direct linkage.
The case yet again illustrates the critical importance of Supreme Court appointments. It is hard to read the majority's opinion without seeing it as a case where power and anti-environmental and anti-regulatory political preferences led to an outcome in substantial tension with 13 years of developing precedent. The failure of the majority even to acknowledge the earlier losses and distinguish or overrule them perhaps reveals the weakness of the majority's reasoning and lack of fealty to precedent. However, the absence of such forthright legal engagement with previous precedents, coupled with the importance of the Burnt Ridge settlement, will benefit future environmentalist and citizen litigants by giving them grounds to argue that the case is factually limited and did not itself claim to change the law of standing in any major way.