Natural Resources Defense Council v. U.S. EPA

Mar 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1151. State authorities submit air pollution emissions data to U.S. EPA. EPA monitors the data in order to evaluate regional compliance with national air pollution standards. In 2007, EPA promulgated a regulation governing the exclusion of emissions data during “exceptional events” such as natural disasters. The Natural Resources Defense Council (NRDC) brought petitions for review, seeking to set aside the rule’s definition of “natural events” and to vacate several statements in the preamble to the rule concerning types of events that may qualify as “exceptional.”

In a split decision the majority rules that, "Even if the statements in the preamble were reviewable under the Clean Air Act, they are not ripe for review at this time. The statements about exceptional events are 'hypothetical and non-specific.' Kennecott, 88 F.3d at 1223. NRDC has not demonstrated that any of the statements has immediate legal or practical consequences. How EPA will use or rely on or interpret what it said in the preamble is uncertain. . . We can see no significant hardship to the parties from waiting for a real case to emerge. As EPA points out in its brief, the Clean Air Act 'provides for judicial review of any EPA decision to determine the attainment status of an area, or to designate or redesignate an area, based on EPA’s decision to exclude exceptional events data or other information.'"

In a separate opinion concurring in part, and dissenting in part, the Justice said, "When an agency receives comments that object to its application of a statutory term as being contrary to the plain text of the statute, what is the agency to understand is the target of the objection? The specific application or the agency’s underlying interpretation of the term or both? The court
responds only the application. But the answer depends on how the comments are phrased. If, as here, the comments address a specific application by pointing out that it reflects an interpretation of a statutory term that contradicts the plain text of the statute, how can the agency respond to the comments without considering whether its definition is consistent with the statute, much less how would it not be on notice that the comments extended to the agency’s interpretation of the statutory term?"

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Trout Unlimited v. Lohn (National Marine Fisheries Service)

Mar 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35623 & 07-35750. According to the Appeals Court, in this case involving many competing parties, "We must decide whether the National Marine Fisheries Service [NMFS] may distinguish between natural and hatchery-spawned salmon and steelhead when determining the level of protection the fish should be afforded under the Endangered Species Act [ESA]."

By way of background, the Appeals Court explains that Pacific Coast salmon are anadromous fish, meaning that they can survive both in saltwater and in freshwater. The salmon hatch out of eggs laid in freshwater rivers and streams, then migrate often hundreds of miles to the ocean, where they live for years before returning to their natal streams to spawn and to die. Steelhead, a closely related species, perform the same migration but are able to spawn multiple times. In the Pacific Northwest, anadromous salmon and steelhead populate the Columbia River and its tributaries, including the Willamette River, the Snake River, the Okanogan River, and the Yakima River.

The appeals primarily involve NMFS’s decision, in accordance with the 2005 Hatchery Listing Policy, to downlist a population of Upper Columbia River steelhead from endangered to threatened. Trout Unlimited and other environmental conservation organizations brought the action challenging: (1) NMFS’s rejection of Trout Unlimited’s petitions to separate natural fish and hatchery fish into different ESUs [evolutionarily significant units], and (2) the downlisting of the Upper Columbia River steelhead ESU from “endangered” to “threatened.” As part of its second claim, Trout Unlimited argues that the 2005 Hatchery Listing Policy impermissibly requires NMFS to consider the status of the entire ESU rather than just the natural components of the ESU when making listing determinations. Trout Unlimited maintains that both NMFS decisions are arbitrary and capricious and thus unlawful under the Administrative Procedure Act and that both fail to employ “the best scientific and commercial data available” in violation of the ESA.

In the end, the Appeals Court concludes explaining, "In the same way that pruning involves the destruction of some branches of a tree to allow the remaining portions to grow, the § 4(d) regulations at issue here represent the agency’s reasonable judgment
that permitting the destruction of some members of an ESU to enable the remaining portions to flourish. Given the agency’s finding that conservation and recovery efforts may be affected by the yearly variation in size and composition of the ESUs, we cannot conclude that regulatory changes giving the agency the flexibility to manage these variations are arbitrary and capricious. . .Based on the foregoing, the opinion of the district court is affirmed in part, reversed in part and remanded with instructions."

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Eastern Niagara Public Power v. FERC

Mar 13: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1472. From 1958 to 2007, the New York Power Authority (NYPA) operated the Niagara Power Project, a hydroelectric facility about five miles downriver from Niagara Falls, pursuant to a 50-year license granted by what is now the Federal Energy Regulatory Commission (FERC). In 2007, FERC approved NYPA’s relicensing application and granted a new 50-year license. Several communities in western New York have challenged FERC’s 2007 licensing decision as arbitrary and capricious and unsupported by substantial evidence. However, the Appeals Court decided, "We deny their petition because FERC’s decision to issue the new license was reasonable and reasonably explained."

Petitioners argue that a 50-year license is too long and inconsistent with Agency practice regarding the terms of licenses, but the Appeals Court said, "FERC possesses express statutory authority to set license terms between 30 and 50 years." Second, petitioners argue that FERC undervalued the project’s output in considering the appropriate length of the new license, but the Appeals Court said, "Applying the deferential arbitrary-and-capricious standard, we have no room to overturn that reasoned and reasonable determination."

Third, petitioners contend that FERC, as a condition of granting the license, should have required NYPA to mitigate certain adverse environmental impacts allegedly caused by the project, but the Appeals Court said, "FERC mandated measures to mitigate any such impact. In short, FERC acted entirely reasonably in addressing possible adverse environmental impacts."
Fourth, petitioners assert that FERC should have considered the consequences of “off-license” agreements that NYPA reached with interested communities and organizations in the area saying, the "agreements represented NYPA’s not-so-subtle efforts to buy off community opposition." (e.g. NYPA promised to pay the Tuscarora Nation tribe, $21.8 million if FERC approved NYPA’s relicensing). The Appeals Court said, "But the off-license agreements are not related to project operations and are irrelevant to FERC’s statutorily mandated assessment of the relicensing application. . . Therefore, FERC properly refused to consider the off-license agreements in deciding whether to reissue the license to NYPA."

Finally, petitioners also appear to directly challenge the off-license agreements as "unlawful." The Appeals Court said, "The source of law on which petitioners are relying for this argument is rather murky. In any event, petitioners lack standing to bring such a claim against FERC. The parties to the off-license agreements were NYPA and certain communities and organizations affected by the project. FERC did not approve those agreements, and FERC does not and cannot control the agreements’ terms."

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Delaware Department of Natural Resources v. FERC

Mar 13: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1007. Petitioner Delaware seeks review of two Federal Energy Regulatory Commission (FERC or Commission) orders by which the Commission conditionally approved an application to site, construct, and operate a liquid natural gas terminal near the mouth of the Delaware River. The Appeals Court dismissed the petition citing a "lack of jurisdiction: Delaware lacks standing because it has not suffered an injury-infact."

According to the background in the case, in September 2004, Crown Landing LLC, a wholly-owned subsidiary of BP America Production Company, filed an application with the Commission to site, construct, and operate a liquid natural gas import terminal at the mouth of the Delaware River. Onshore portions of the proposed project were to be located in New Jersey, but a pier designed for the unloading of tanker ships was planned to extend beyond New Jersey waters into that portion of the river which appertains to neighboring Delaware.

Section 3 of the Natural Gas Act (NGA), prohibits the importation of foreign natural gas without prior authorization by the Commission. The NGA specifically provides for the protection of rights granted to the states under the Coastal Zone Management Act of 1972 (CZMA), and the Clean Air Act (CAA). Crown Landing did not file a CZMA certification with Delaware but did request a status decision from the state.

On February 3, 2005, the Delaware Department of Natural Resources and Environmental Control, petitioner here, issued its decision and rejected the project. On appeal, Delaware’s Coastal Zone Industrial Control Board unanimously affirmed that decision. Meanwhile, New Jersey filed an original action before the Supreme Court challenging Delaware’s jurisdiction to regulate the Crown Landing terminal pursuant to its authority under the CZMA. The Supreme Court confirmed that Delaware indeed possesses this authority. New Jersey v. Delaware, 128 S. Ct. 1410, 1427-8 (2008) [See WIMS 3/31/08].

On June 20, 2006, the Commission issued an order approving Crown Landing’s application subject to some sixty-seven conditions precedent. The Commission acknowledged that the Crown Landing proposal is subject to coastal zone consistency reviews in New Jersey, Delaware, and Pennsylvania and thus concluded that the company must obtain the concurrence of the relevant state agencies prior to Commission approval of the commencement of construction.

The Appeals Court said finally, "In sum, because FERC’s order -- as it stands now -- cannot possibly authorize Crown Landing’s project absent the approval of Delaware, the state has suffered no injury-in-fact, and thus lacks standing. For the foregoing reasons, the petition for review is dismissed."

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Hempstead County Hunting Club v. Southwestern Electric Power

Mar 12: In the U.S. Court of Appeals, Third Circuit, Case No. 08-2613. Hempstead County Hunting Club (HCHC) filed a citizen's suit against Southwestern Electric Power Company (SWEPCO) pursuant to the Clean Air Act (CAA), seeking a preliminary and permanent injunction to prevent SWEPCO from commencing construction, constructing, or continuing construction of its 600-megawatt pulverized coal-fired power plant in Hempstead County, Arkansas, without first obtaining a Prevention of Significant Deterioration (PSD) permit as required by the CAA.

On the same day that it filed its complaint, HCHC filed a motion for temporary restraining order and preliminary injunction. The
district court denied the motion, and HCHC filed an interlocutory appeal, arguing that the district court abused its discretion in
denying the preliminary injunction because "SWEPCO has proposed to construct and is constructing its Hempstead Plant, although it does not have a CAA permit."

SWEPCO filed a motion to dismiss the appeal, arguing that the appeal is moot because it has now received the CAA permit and has lawfully begun construction at the site, rendering HCHC's appeal of the denial of its motion for a preliminary injunction to halt preconstruction activities moot. The Appeals Court agreed and dismissed the appeal as moot.

The Appeals Court said, "HCHC's allegation that SWEPCO is acting illegally rests on its argument that SWEPCO is engaging in construction activities without a permit. Therefore, the present case is comparable to Mississippi River Revival in which, after the MPCA issued storm permits, the district court dismissed the environmental organizations' complaints as moot, as the complaints were based on the allegation that the Cities were discharging storm waters without required permits."

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American Bird Conservancy v. Kempthorne

Mar 11: In the U.S. Court of Appeals, Third Circuit, Case No. 07-4609. In July and August 2005, appellants, a number of conservation groups, petitioned the U.S. Fish and Wildlife Service (FWS) to list as endangered on an emergency basis the red knot, a species of migratory shorebird. The FWS declined to undertake emergency rulemaking by letter of December 22, 2005, but continued to review the petition in the context of a non-emergency.

On June 13, 2006, before the FWS made a final determination, appellants filed a complaint in the U.S. District Court for the District of New Jersey claiming (1) that the denial of emergency rulemaking was arbitrary and capricious, in violation of the Endangered Species Act (ESA), and (2) that the FWS violated the ESA by failing to issue timely findings on the petition.

The FWS issued its final determination -- that the listing of the red knot was warranted but precluded by higher-priority listing activity -- in its periodic Candidate Notice of Review (CNOR) published on September 12, 2006. In response, appellants dismissed their timeliness claim, but persisted with their challenge to the denial of emergency rulemaking. In an opinion and order dated October 11, 2007, the District Court dismissed the complaint for lack of subject matter jurisdiction, finding that the FWS’s denial of the emergency listing request was not reviewable under either the ESA or the Administrative Procedure Act (APA). Given this finding, the District Court did not find it necessary to reach the FWS’s claim that the publication of the warranted but precluded listing determination in the CNOR rendered moot appellants’ challenge to the denial of emergency rulemaking. The appeal followed.

The Appeals Court dismissed the appeal as moot; however, it said, "We note, as we conclude, that appellants have received quite substantial relief. Now that the CNOR has issued, the red knot is on the agency’s watchlist. This means that the emergency monitoring system set forth at 16 U.S.C. § 1533(b)(3)(C)(iii) has become available in the event of exigent circumstances that warrant immediate protection of the red knot."

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Alaska Wilderness v. Kempthorne

Mar 6: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 07-71457, 07-71989, & 07-72183. In a brief order, the Appeals Court said, "The opinion and dissent filed on November 20, 2008, and published at 548 F.3d 815 (9th Cir. 2008), are hereby vacated and withdrawn [See WIMS 11/20/08]. Respondents’ petition for rehearing and suggestion for rehearing en banc is denied as moot. All pending motions to file amicus briefs in support of rehearing are likewise denied as moot. The opinion vacated and withdrawn will be replaced by a new opinion. Our denial of the petition for rehearing with suggestion for rehearing en banc is made without prejudice to any party who may wish to file a petition for rehearing or petition for rehearing en banc with regard to the new opinion."

The case involved six organizations that support environmental conservation, indigenous communities, and wildlife populations of Northern Alaska. They challenged the Minerals Management Service’s (MMS) approval of an exploration plan submitted by Shell Offshore Inc. (Shell). Shell seeks to drill multiple offshore exploratory oil wells over a three-year period in the Alaskan Beaufort Sea. In the November 20, split 2-1 decision the Appeals Court, vacated the Agency’s approval of Shell’s exploration plan, and remanded the case so that MMS can conduct the “hard look” analysis required by NEPA. The Appeals Court said MMS must prepare a revised EA "or, as necessary, an EIS."

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Wilderness Watch v. Abigail Kimbell

Mar 6: In the U.S. Court of Appeals, Eighth Circuit, Case Nos. 07-3689, consolidated with 07-3696 and 08-1167. In this case involving the Boundary Waters Canoe Area Wilderness Act, Wilderness Watch, Sierra Club North Star Chapter, and Northeastern Minnesotans for Wilderness (collectively Wilderness Watch) brought suit against Abigail Kimbell, Chief of the United States Forest Service, and Ed Schafer, Secretary of the United States Department of Agriculture (collectively Forest Service), alleging that the Forest Service's decision to construct a certain snowmobile trail between McFarland Lake and South Fowl Lake in northeastern Minnesota violated the Boundary Waters Canoe Area Wilderness (BWCAW) Act.

Wilderness Watch based its challenge on Congress's inclusion of South Fowl Lake (and of North Fowl Lake, to which it is connected) in the "wilderness" under the BWCAW Act. According to Wilderness Watch, the BWCAW Act prohibits snowmobiling on the Fowl Lakes (Count I) and requires the Forest Service to implement motorboat quotas on them (Count II).

The district court granted summary judgment to the Forest Service on Counts I and II, finding that the North and South Fowl Lakes are not "wilderness" under the BWCAW Act and therefore are not subject to snowmobiling and motorboat restrictions. But the district court also found that the environmental assessment (EA) prepared by the Forest Service for the plan to construct the snowmobile trail connecting the Fowl Lakes adjacent to the BWCAW failed to properly analyze the noise impact resulting from snowmobile use on the trail, as required by the National Environmental Policy Act (NEPA).

As a result, the district court remanded to the Forest Service, instructing it to prepare an environmental impact statement (EIS) assessing the sound impact of the proposed trail routes on the adjoining wilderness area, and also enjoined the Forest Service from conducting any further activity on the proposed trail pending its completion of the EIS. Wilderness Watch appeals from the district court's grant of summary judgment to the Forest Service on Counts I and II, and Cook County, a political subdivision of the State of Minnesota, Conservationists with Common Sense, and Arrowhead Coalition for Multiple Use (collectively Intervenors) appeal from the district court's NEPA ruling.

The Appeals Court affirmed the district court decision and concluded, "Accordingly, we hold that Wilderness Watch's claims that the Forest Service (1) violated the BWCAW Act by permitting snowmobiles on South Fowl Lake and (2) failed to implement motorboat quotas on North and South Fowl Lakes in violation of § 4(f) of the BWCAW Act are time-barred by the six-year statute of limitations. As to the district court's NEPA ruling, we lack jurisdiction to review the district court's order remanding the matter to the Forest Service for an EIS and decline to vacate the injunction."

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Latino Issues Forum v. EPA

Mar 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-71907. The Latino Issues Forum and Sierra Club challenged U.S. EPA's approval of a revision to the state implementation plan (SIP) for San Joaquin Valley, California. The revision, known as Rule 4550, is part of the Conservation Management Practices (CMP) Program, an air-pollutant reduction program, established by the San Joaquin Valley Unified Air Pollution Control District (District). Rule 4550 aims to reduce emissions from agricultural sources of a certain kind of particulate matter known as PM-10. The Appeals Court ruled, "We hold that Rule 4550 comports with the requirements of 42 U.S.C. §§ 7509 and 7513a(b)(1)(B) and, therefore, deny the petition."

The Petitioners challenged two aspects of EPA’s approval of Rule 4550 as being arbitrary, capricious, or not in accordance with law. First, Petitioners claim that Rule 4550 does not incorporate “all feasible measures,” as required by 42 U.S.C. § 7509(d)(2). Second, Petitioners assert that Rule 4550’s menu of options for controlling agricultural PM-10 emissions does not constitute BACM, as required by 42 U.S.C. § 7513a(b)(1)(B).

On the first question, the Appeals Court said, "Because § 7509(d)(2) is ambiguous and the EPA’s statutory interpretation is reasonable, we hold that the EPA acted lawfully by not requiring implementation of 'all feasible measures' into Rule 4550." On the second issue, the Appeals Court said, "EPA demonstrated that the controls included in the rule’s menu meet the stringency requirements of BACM. Although the context is different, our inquiry into whether the EPA properly followed the procedures set forth by the Act remains the same. And, just as we held in Vigil, there is no evidence here that the process which led to the creation and adoption of Rule 4550 was improper. . . Because the EPA made no clear error of judgment in ruling that Rule 4550 complies with BACM, because the EPA followed its regulatory process, and because that process was consistent with one we approved in Vigil, we hold that the EPA’s approval of Rule 4550 did not violate 42 U.S.C. § 7513a(b)(1)(B)."

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Martex Farms, S.E. v. Environmental Appeals Board

Mar 5: In the U.S. Court of Appeals, First Circuit, Case No. 08-1311. Martex Farms, S.E., one of the largest commercial farms in Puerto Rico, appealed a final decision and order of U.S. EPA's Environmental Appeals Board (the Board), which held Martex liable for numerous violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. The Appeals Court affirmed the Board's decision in full, as to both liability and penalty.

Because Martex uses pesticides as part of its agricultural methods, it is subject to the Worker Protection Standard (WPS), 40 C.F.R. pt. 170, which is enforced by EPA. The WPS is intended to reduce the risk of illness and injury to workers and handlers who are exposed to pesticides during the course of employment. In January 28, 2005, EPA filed an administrative complaint against Martex alleging 336 violations of FIFRA by Martex. The EPA accused Martex of failing to meet several rather common sense and straightforward WPS requirements, including: (1) displaying information for workers and handlers regarding pesticide application; (2) providing decontamination supplies for workers and handlers in easily accessible locations; and (3) providing handlers with personal protective equipment. Martex subsequently appealed the decisions of an administrative law Judge and the Board.

The Appeals Court said, "Our review of the Board's conclusions is highly deferential. By statute, we will sustain the Board's order 'if it is supported by substantial evidence when considered on the record as a whole.' 7 U.S.C. § 136n(b). In addition, we will sustain the EPA's interpretation of its own regulations unless that interpretation is 'arbitrary, capricious, or otherwise plainly impermissible.'"

On one of the primary arguments, i.e. Substantial Evidence Claim, the Appeals Court said, "Martex also contests the substantive findings of liability made below. The crux of Martex's argument in this regard is that its farms contain abundant sources of water, such as lakes, streams, and fruit washing facilities, which are sufficient to comply with the WPS standards. However, neither in its brief nor at oral argument did Martex allege that these water sources were grouped together with the required soap and paper towels, or that they were available within 1/4 mile of the work sites, as required by regulations. Indeed, substantial evidence in the record points to the opposite conclusion. We therefore see no basis for reversal as to the substantive violations."

On the penalty issue, the Appeals Court said, "The maximum statutory fine for each violation of FIFRA committed by Martex is $1,100. The Board conducted a deliberate and rigorous evaluation of the proper penalty as to each violation, never assessed an amount greater than $1,100 for any violation, and in several cases assessed a much lower penalty. One of the factors it considered was Martex's ability to pay the proposed penalty. We therefore find no error."

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Supreme Court Decision In Summers v. Earth Island Institute

Note: Previously, we have not posted Supreme Court decision here. Effective immediately, we will begin posting Supreme Court decision that we cover.

Mar 3: In the U.S. Supreme Court, Case No. 07-463 [See WIMS 10/8/08]. On appeal from the U.S. Court of Appeals, Ninth Circuit [See WIMS 6/11/07]. The questions presented are indicated by the Court as: 1. Whether the Forest Service's promulgation of 36 C.F.R. 215.4(a) and 215.12(f), as distinct from the particular site-specific project to which those regulations were applied in this case, was a proper subject of judicial review. 2. Whether respondents established standing to bring this suit. 3. Whether respondents' challenge to 36 C.F.R. 215.4(a) and 215.12(f) remained ripe and was otherwise judicially cognizable after the timber sale to which the regulations had been applied was withdrawn, and respondents' challenges to that sale had been voluntarily dismissed with prejudice, pursuant to a settlement between the parties. 4. Whether the court of appeals erred in affirming the nationwide injunction issued by the district court. In the 5-4 split decision, Justice Scalia delivered the opinion of the Court, in which Justices Roberts, Kennedy, Thomas, and Alito joined. Justice Kennedy also filed a separate concurring opinion. Justices Breyer filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, joined.

The majority said, "Respondents are a group of organizations dedicated to protecting the environment. (We will refer to them collectively as Earth Island.) They seek to prevent the United States Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions. We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations." The case involves the "Burnt Ridge Project" for which the Service issued a decision memo approving the Project, a salvage sale of timber on 238 acres damaged by that fire in September 2003.

The Ninth Circuit held that Earth Island’s challenges to regulations not at issue in the Burnt Ridge Project were not ripe for adjudication because there was "not a sufficient ‘case or controversy’" before the court to sustain a facial challenge. It affirmed, however, the District Court’s determination that §§215.4(a) and 215.12(f), which were applicable to the Burnt Ridge Project, were contrary to law, and upheld the nationwide injunction against their application. The majority said, "Here, respondents can demonstrate standing only if application of the regulations by the Government will affect them in the manner described. . . 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. Sierra Club v. Morton, 405 U. S. 727, 734–736 (1972).

The majority determined that the one proof of valid standing in the case was, in fact settled and remedied, in the district court decision, and said, "Respondents have identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members." The majority further said, "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 right in vacuo -- [in isolation and without reference to anything else] is insufficient to create Article III standing."

The majority concluded, "Since we have resolved this case on the ground of stand-ing, we need not reach the Government’s contention that plaintiffs have not demonstrated that the regulations are ripe for review under the Administrative Procedure Act.We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate. And we do not disturb the dismissal of respondents’ challenge to the remaining regulations, which has not been appealed. The judgment of the Court of Appeals is reversed in part and affirmed in part."

The majority also summarized and responded the dissenting argument as follows: "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. Since, for example, the Sierra Club asserts in its pleadings that it has more than "‘700,000 members nationwide, including thousands of members in California’" who "‘use and enjoy the Sequoia National Forest,’" post, . . . it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service’s procedures and will suffer (unidentified) concrete harm as a result. 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.

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