The U.S. Supreme Court’s decision in Summers v. Earth Island Institute, No. 07-463, has made it more difficult for plaintiffs in federal court to show that they have standing to bring their suits. The decision’s reach is broad. Earth Island not only hinders plaintiffs in environmental cases; it also hinders organizational plaintiffs, who rely on their members’ injuries to sustain their suits, in all cases filed in federal court.

In Earth Island, the Supreme Court considered whether environmental groups challenging U.S. Forest Service regulations exempting certain projects from notice and comment had shown that they had been injured by the regulations. The groups brought their challenge after the Forest Service approved a salvage timber sale, called the Burnt Ridge Project, without notice and comment. Even though the parties soon settled their dispute over the Burnt Ridge Project, the district court — affirmed in part on appeal by the Ninth Circuit — enjoined the regulations, rejecting the government’s position that the environmental groups, upon settling, lacked standing to proceed.

The Supreme Court reversed, holding that there was “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…apart from any concrete application that threatens imminent harm to his interests.” The Court reasoned that the settlement redressed the plaintiffs’ only injury because plaintiffs specifically identified only the Burnt Ridge Project as a Forest Service project, subject to the challenged regulations, injuring their concrete interests. (The Court found that the plaintiffs’ other evidence of injury was submitted too late or was so vague that accepting it “would be tantamount to eliminating the requirement of concrete, particularized injury in fact.”) The Court rebuffed the plaintiffs’ arguments that they did not have to identify another Forest Service project injuring them. The Court also rejected the plaintiffs’ contention that they could continue their suit upon the procedural injury of being denied notice and comment on the Burnt Ridge Project. Procedural rights, the Court noted, protect concrete interests, so the deprivation of a procedural right alone is not an independent basis for standing. The Court also rejected the dissent’s argument that organizations like the environmental groups should have standing when, “accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury.” Instead of probabilistic conjecture based on malleable assumptions, the Court required organizational plaintiffs put on concrete evidence of their members’ injuries.

Import for Future Cases

For environmental cases, Earth Island reaffirms the rule that challengers to environmental regulations need to identify concrete and specific ways in which the regulations will cause them harm. Focusing on the injury requirement of standing, the Court neither accepted nor rejected the government’s alternative arguments that the environmental groups’ facial challenge to the regulations was not ripe (i.e., that the questions presented by the groups’ challenge were not yet fit for judicial resolution and must await a particular application of the regulations). Those ripeness arguments, therefore, may yet prevail and prevent plaintiffs from challenging regulations even when they have shown a likely future injury. The Supreme Court did, however, address many of the government’s ripeness concerns in its standing analysis. In emphasizing that the source of the plaintiffs’ standing troubles was their failure to identify another “application of the invalidated regulations that threatens imminent and concrete harm” (emphasis added), Earth Island makes it much more difficult for environmental plaintiffs to show the necessary constitutional injury in pre-enforcement challenges to environmental regulations.

In at least three ways, Earth Island is more broadly significant for all cases filed in federal court. First, in light of its holding that settlement redresses an injury and thereby ends the settled portion of the case, federal litigants may be unable to settle a portion of a case yet preserve questions for judicial review. Second, Earth Island makes clear that a mere deprivation of a procedural right is not a constitutionally cognizable injury, even if Congress establishes the right. Finally, Earth Island signals a limit to the role and usefulness of statistics and probability in standing. Two years ago, the Court in Massachusetts v. EPA, 549 U.S. 497 (2007) relied on probable future injury in finding that states had demonstrated a sufficient injury to challenge EPA’s refusal to regulate greenhouse gas emissions. Large organizations have also tried to satisfy federal-court standing requirements by reasoning that at least one of their many members is likely to be injured by a challenged law. See, for example, Crawford v. Marion County Election Board, 472 F. 3d 949 (2007), the Seventh Circuit decision, affirmed on the merits by the Supreme Court, approving Indiana’s voter-identification law against a challenge brought by the Indiana Democratic Party: “No doubt most people who don’t have photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates.” Earth Island strongly indicates that organizations cannot rely on such statistical logic to demonstrate that one of their members has been or will be injured by a challenged law.

For more information, please contact the following attorneys:

David Salmons, Partner
david.salmons@bingham.com, 202.373.6283

Michael B. Wigmore, Partner
michael.wigmore@bingham.com, 202.373.6792

Sandra P. Franco, Counsel
s.franco@bingham.com, 202.373.6019

Bryan Killian, Associate
bryan.killian@bingham.com, 202.373.6191