Summers v. Earth Island Institute

555 U.S. _

Case Year: 2009

Case Ruling: 5-4, Reversed in Part and, Affirmed in Part

Opinion Justice: Scalia

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Alito, Kennedy, Roberts, Thomas


1st Concurring Opinion

Author: Kennedy


1st Dissenting Opinion

Author: Breyer

Joiner(s): Ginsburg, Souter, Stevens

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In 1992 Congress enacted the Forest Service Decisionmaking and Appeals Reform Act, which required the Forest Service to establish a notice, comment, and appeal process for proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans developed under the Forest and Rangeland Renewable Resources Planning Act of 1974. The Forest Service's regulations implementing the act provided that notice, appeal, and comment would not be applied to projects that the service considered excluded from the requirement to file an environmental impact statement (EIS) or environmental assessment (EA).

Later, after notice and comment, the Forest Service added amendments to its manual of implementing procedures providing that that fire-rehabilitation activities on areas of less than 4,200 acres, and salvage-timber sales of 250 acres or less, did not cause a significant environmental impact and would be categorically exempt from the requirement to file an EIS or EA. The amendments therefore excluded these projects from the notice, comment, and appeal process.

In the summer of 2002 fire burned a significant area of the Sequoia National Forest. In September 2003 the Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres damaged by that fire. Because less than 250 acres were involved, the service did not provide notice or a period of public comment, and did not make an appeal process available.

In December respondents--a group of organizations dedicated to protecting the environment--filed a complaint in a U.S. district court seeking to prevent the Forest Service from enforcing its regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process.

During the course of the suit in the federal courts, the U.S. government alleged that the organizations lacked standing to challenge the regulations. In its opinion, the Court focused exclusively on the government's claim.



In limiting the judicial power to Cases and Controversies, Article III of the Constitution restricts it to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law.

The doctrine of standing is one of several doctrines that reflect this fundamental limitation. It requires federal courts to satisfy themselves that the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction.. . . To seek injunctive relief, a plaintiff must show that he is under threat of suffering injury in fact that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury. . . .

It is common ground that the respondent organizations can assert the standing of their members. To establish the concrete and particularized injury that standing requires, respondents point to their members' recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice.

Affidavits submitted to the District Court alleged that organization member Ara Marderosian had repeatedly visited the Burnt Ridge site, that he had imminent plans to do so again, and that his interests in viewing the flora and fauna of the area would be harmed if the Burnt Ridge Project went forward. . . . The Government concedes this was sufficient to establish Article III standing with respect to Burnt Ridge. . . . [H]owever, the parties settled their differences on that score. Marderosian's injury in fact with regard to that project has been remedied.

Respondents have identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members. The only other affidavit relied on was that of Jim Bensman. He asserted, first, that he had suffered injury in the past from development on Forest Service land. That does not suffice for several reasons: because it was not tied to application of the challenged regulations, because it does not identify any particular site, and because it relates to past injury rather than imminent future injury that is sought to be enjoined.

Bensman's affidavit further asserts that he has visited many National Forests and plans to visit several unnamed National Forests in the future. Respondents describe this as a mere failure to provide the name of each timber sale that affected [Bensman's] interests. It is much more (or much less) than that. It is a failure to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of Bensman's to enjoy the National Forests. The National Forests occupy more than 190 million acres, an area larger than Texas. There may be a chance, but is hardly a likelihood, that Bensman's wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations. . . . Here we are asked to assume not only that Bensman will stumble across a project tract unlawfully subject to the regulations, but also that the tract is about to be developed by the Forest Service in a way that harms his recreational interests, and that he would have commented on the project but for the regulation. Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact.

The Bensman affidavit does refer specifically to a series of projects in the Allegheny National Forest that are subject to the challenged regulations. It does not assert, however, any firm intention to visit their locations, saying only that Bensman " 'want[s] to' " go there. This vague desire to return is insufficient to satisfy the requirement of imminent injury. . . .

Respondents argue that they have standing to bring their challenge because they have suffered procedural injury, namely that they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied. But deprivation of a procedural right without some concrete interest that is affected by the deprivation--a procedural rightin vacuo--is insufficient to create Article III standing. Only a person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. (emphasis added).

It makes no difference that the procedural right has been accorded by Congress. . . . [T]he requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute. . . .

The dissent proposes a hitherto unheard-of test for organizational standing: whether, 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. . . . This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm. . . .

The dissent would have us replace the requirement of " 'imminent' " harm, which it acknowledges our cases establish, with the requirement of " 'a realistic threat' that reoccurrence of the challenged activity would cause [the plaintiff] harm 'in the reasonably near future.' " The problem for the dissent is that the timely affidavits no more meet that requirement than they meet the usual formulation. They fail to establish that the affiants' members will ever visit one of the small parcels at issue. . . .

The judgment of the Court of Appeals is reversed in part and affirmed in part.

It is so ordered.


I join in full the opinion of the Court. As the opinion explains, deprivation of a procedural right without some concrete interest that is affected by the deprivation--a procedural right in vacuo--is insufficient to create Article III standing. The procedural injury must impair a separate concrete interest.

This case would present different considerations if Congress had sought to provide redress for a concrete injury giv[ing] rise to a case or controversy where none existed before. Nothing in the statute at issue here, however, indicates Congress intended to identify or confer some interest separate and apart from a procedural right.


The majority says that the plaintiffs lack constitutional standing to raise this claim. It holds that the dispute between the five environmental groups and the Forest Service consists simply of an abstract challenge; it does not amount to the concrete Cas[e] or Controvers[y] that the Constitution grants federal courts the power to resolve. I cannot agree that this is so. . . .

[T]he majority assumes, as do I, that these unlawful Forest Service procedures will lead to substantive actions, namely the sales of salvage timber on burned lands, that might not take place if the proper procedures were followed. But the majority then finds that the plaintiffs have not sufficiently demonstrated that these salvage-timber sales cause plaintiffs an actual injury, that is, harm to the recreational, aesthetic, or other environmental interests of organization members. . . . [T]he majority holds that the plaintiff organizations, while showing that they have members who have used salvage-timber sale parcels in the past, have failed to show that they have members likely to use such parcels in the future.

How can the majority credibly claim that salvage-timber sales, and similar projects, are unlikely to harm the asserted interests of the members of these environmental groups? The majority apparently does so in part by arguing that the Forest Service actions are not imminent--a requirement more appropriately considered in the context of ripeness or the necessity of injunctive relief. I concede that the Court has sometimes used the word imminent in the context of constitutional standing. But it has done so primarily to emphasize that the harm in question--the harm that was not imminent--was merely conjectural or hypothetical or otherwise speculative. Where the Court has directly focused upon the matter, i.e.,where, as here, a plaintiff has already been subject to the injury it wishes to challenge, the Court has asked whether there is a realistic likelihood that the challenged future conduct will, in fact, recur and harm the plaintiff. . . . The Forest Service admits that it intends to conduct thousands of further salvage-timber sales and other projects exempted under the challenged regulations in the reasonably near future. How then can the Court deny that the plaintiffs have shown a realistic threat that the Forest Service will continue to authorize (without the procedures claimed necessary) salvage-timber sales, and other Forest Service projects, that adversely affect the recreational, aesthetic, and environmental interests of the plaintiffs' members? . . .

Consider: . . The affidavit of a member of Sequoia ForestKeeper, Ara Marderosian, attached to the Complaint, specifies that Marderosian had visited the Burnt Ridge Project site in the past and intended to return. The majority concedes that this is sufficient to show that Marderosian had standing to challenge the Burnt Ridge Project. The majority must therefore agree that at least one identified member ha[s] suffered . . . harm. Why then does it find insufficient the affidavit, also attached to the Complaint, of Jim Bensman, a member of Heartwood, Inc.? That affidavit states, among other things, that Bensman has visited 70 National Forests, that he has visited some of those forests hundreds of times, that he has often visited the Allegheny National Forest in the past, that he has probably commented on a thousand Forest Service projects including salvage-timber sale proposals, that he intends to continue to comment on similar Forest Service proposals, and that the Forest Service plans in the future to conduct salvage-timber sales on 20 parcels in the Allegheny National Forest-one of the forests he has visited in the past.

The Bensman affidavit does not say which particular sites will be affected by future Forest Service projects, but the Service itself has conceded that it will conduct thousands of exempted projects in the future. Why is more specificity needed to show a realistic threat that a project will impact land Bensman uses? . . . Whatever doubt may remain is settled by the affidavits the plaintiffs submitted after the Burnt Ridge dispute was settled (while the other claims in the Complaint remained alive). . . .

The affidavits in question describe a number of then-pending Forest Service projects, all excluded from notice, comment, and appeal under the Forest Service regulations and all scheduled to take place on parcels that the plaintiff organizations' members use. Erik Ryberg, for example, a member of the Center for Biological Diversity, described in his affidavit a proposed logging project scheduled for the Payette National Forest--an area with which he is personally familiar. A second affidavit filed by Jim Bensman described a salvage-timber sale scheduled for the Hoosier National Forest--an area Bensman had visited multiple times and to which he planned to return in the coming weeks--and one planned for the Daniel Boone National Forest-also used by Bensman--which would impact [Heartwood's] members['] use of the areas. The affidavits also describe, among other things, the frequency with which the organizations' members routinely file administrative appeals of salvage-timber sales and identify a number of proposed and pending projects that certain Sierra Club members wished to appeal. These allegations and affidavits more than adequately show a realistic threat of injury to plaintiffs brought about by reoccurrence of the challenged conduct--conduct that the Forest Service thinks lawful and admits will reoccur. Many years ago the Ninth Circuit warned that a court should not be blind to what must be necessarily known to every intelligent person. Applying that standard, I would find standing here.

With respect, I dissent.