New Standing Decision
The Supreme Court announced its decision in Summers v Earth Island Institute this morning. The full opinion is on the Supreme Court site.) In a 5-4 split, the Court denied standing in an opinion by Justice Scalia. As Justice Stevens’ dissent explains:
The Court holds that the Sierra Club and its members along with other environmental organizations) do not suffer any “‘concrete injury'” when the Forest Service sells timber for logging on “many thousands” of small (250-acre or less) woodland parcels without following legally required procedures-procedures which, if followed, could lead the Service to cancel or to modify the sales. Nothing in the record or the law justifies this counter intuitive conclusion.
Doctrinally, the most significant part of the opinion is the holding that procedural rights do not provide a basis for standing unless the plaintiff can demonstrate a concrete stake in the outcome of the dispute.
This was a predictable holding. Predictable because in many different contexts, the Court has only viewed procedural rights as having utilitarian value in changing the outcome, rather than having any intrinsice value of their own. We see this in decisions involving due process and in the harmless error doctrine. The decision also fits into a line of cases refusing to allow plaintiffs to raise broad programatic challenges to the adminstration of government programs.
Nevertheless, the decision does undermine the ability of Congress to impose legally binding procedural requirements on administrators. This could be another context where state governments could be helpful (as in Massachusetts v. EPA). Although it may be impossible for any individual plaintiff to prove that she would have visited one of these woodlands, it would be easy for a state to show that the decision would impact some of the woodlands within its borders. Congress might want to consider encouraging plaintiffs to run the standing gauntlet by providing enhanced attorneys fees (for instance, allowing a contingency multiplier).
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About Dan
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…
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Dan is right that this decision is not surprising (nor is the 5-4 lineup, with Kennedy again trying to straddle the center but this time landing on the side of the Court’s conservative wing). Nonetheless, this case presents significant barriers to the ability of citizens to play the role Congress has tried to assign them as co-overseers of federal agency implementation of the law.
I realize that doesn’t trouble Justice Scalia (or Chief Justice Roberts), who believe the business of law implementation is best left entirely to the executive branch, with oversight every four years by the voters. But looking back on 8 years of an administration openly hostile to the environmental laws (among others) it was supposed to implement, it is easy to see how important outside oversight can be.
This holding is likely to significantly multiply the costs in time and money of forcing recalcitrant agencies to live up to their statutory obligations. No one can seriously doubt that the Sierra Club and other environmental plaintiffs in this suit in fact have members who will be affected if the Forest Service continues to apply its unlawful notice and appeal regulations nationwide. Yet the majority apparently insists that they affirmatively demonstrate that effect for every single proposed project in order to enforce the law nationwide.
Again Dan is right that adding states as plaintiffs could help, at least facilitating statewide challenges (although surely not nationwide, on the majority’s test). Recognizing that in the last few years of the Bush administration states like California, Massachusetts and others increasingly stepped up to that role, I worry that the politics of persuading states to sue are sufficiently daunting that in too many cases environmental plaintiffs will not be able to surmount them, particularly in some of the areas likely to be hardest hit by lawless natural resource administration.