Hells Canyon Preservation v. U.S. Forest Service

Jan 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35456. Plaintiffs-Appellants Hells Canyon Preservation Council and The Wilderness Society (collectively, HCPC or plaintiffs) brought suit against the United States Forest Service (Forest Service or Service), seeking a judgment declaring: (1) that the Forest Service has failed to retain the original map of the Wilderness in violation of the Hells Canyon National Recreation Area Act, 16 U.S.C. § 460gg(b); (2) that the Forest Service’s description of the wilderness boundary is arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A); and (3) that the Forest Service’s failure to close the Lord Flat Trail to motorized vehicle use is an “agency action unlawfully withheld or unreasonably delayed” under 5 U.S.C. § 706(1).

Plaintiffs also seek an injunction to close the Lord Flat Trail to motorized vehicle use. The district court held that each of plaintiffs’ claims was barred by the Administrative Procedure Act’s (APA’s) six-year statute of limitations. The Ninth Circuit majority said in a split decision, "Although we rely on different reasoning, we affirm the judgment of the district court." In conclusion the majority ruled, "Over a three-year period, between 1978 and 1981, the Forest Service considered the evidence, consulted the controlling statutes, and then acted to comply with the Wilderness Act by publishing the boundary description. From that time, plaintiffs had six years in which to air their disagreement. They did not. We see no reason to entertain their attempt to revive their disagreement by labeling the Forest Service’s actions as an ongoing failure to act."

In the partial dissent, one of the Justice's ruled, "I concur in the majority’s analysis of the first two claims. Plaintiffs do not have standing to challenge the Forest Service’s failure to retain the original map of the Hells Canyon Wilderness area. Maj. op. Part II-A. And Plaintiffs’ claim that the boundary description is arbitrary and capricious is barred by the six-year statute of limitations. Maj. op. Part II-B. I respectfully dissent, however, from the majority’s analysis of the third claim. Maj. op. Part II-C. . . In my view, Plaintiffs have asserted a viable claim to “compel agency action unlawfully withheld” under 5 U.S.C. § 706(1)."

Access the complete opinion and dissent (click here).

State of North Carolina v. EPA

Nov 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1225. The State of North Carolina petitions for review of the final rule of U.S. EPA removing the northern part of the State of Georgia from EPA’s regulations under its national ambient air quality standard (NAAQS) for ozone measured during a one-hour period [See 73 FR 21,528, 4/22/08]. In 1998 EPA called upon several states to revise their state implementation plans (SIPs) for attaining the NAAQS for ozone by reducing emissions of oxides of nitrogen (NOx), a precursor of ozone [63 FR 57,356, 10/27/98, NOx SIP Call].

Following the remand in Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), cert. denied, 532 U.S. 904 (2001), EPA promulgated a rule that included only the northern portion of Georgia in the NOx SIP Call under the one-hour ozone standard [69 FR 21,604, 4/21/04, Remand Rule]. Georgia’s inclusion was based on EPA’s findings in the NOx SIP Call that emissions from Georgia were significantly contributing to non-attainment of the one-hour ozone NAAQS in Birmingham, Alabama and Memphis, Tennessee.

Upon the petition of an industry coalition, an intervenor, EPA reconsidered its inclusion of Georgia in light of its determinations that recently Birmingham, and earlier Memphis, had attained the one-hour ozone standard. North Carolina now challenges the Withdrawal Rule as contrary to EPA policy requiring states’ adherence to NOx emissions budgets based on the one-hour ozone standard after the repeal of the one-hour standard, as nonconformance with the mandate in Michigan v. EPA, and as disparate treatment of Georgia without lawful justification.

The Appeals Court rules, "We do not reach the merits of these contentions because we conclude that North Carolina lacks standing, specifically that North Carolina failed to show redressability." Further, the Appeals Court says, "The Division’s [Georgia Environmental Protection Division] showing in its sur-reply that Georgia intends to use CSP credits to cover its excess emissions thus resolves the question of redressability, for North Carolina can no longer show that vacating the Withdrawal Rule and re-including northern Georgia in the NOx SIP Call is likely to redress North Carolina’s difficulty in meeting the 1997 NAAQS eight-hour
ozone standard. As counsel for North Carolina stated at oral argument, if reinstating Georgia in the NOx SIP Call would not lower Georgia’s emissions, then North Carolina has a standing problem. Accordingly, we dismiss North Carolina’s petition for lack of standing."

Access the complete opinion (click here).

Levine v. Vilsack (USDA)

Nov 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-16441. A number of parties including The Humane Society of the United States (collectively “Levine”) appealed from a summary judgment ruling in favor of the Secretary of the United States Department of Agriculture (Secretary or USDA). The case involves a dispute concerning whether chickens, turkeys and other domestic fowl are excluded from the humane slaughter provisions of what the parties (and references subsequent to the enactment) term the “Humane Methods of Slaughter Act of 1958 (HMSA).” In particular, the parties dispute whether poultry should be considered “other livestock” as that phrase is used in that statute.

Levine challenged USDA’s enunciation of its position -- made most recently on September 28, 2005, in a Federal Register Notice issued by USDA’s Food Safety and Inspection Service [see Treatment of Live Poultry before Slaughter, 70 FR 56,624, 9/28/05] -- that “there is no specific federal humane handling and slaughter statute for poultry.” In Levine v. Conner, 540 F. Supp. 2d 1113 (N.D. Cal. 2008), the United States District Court for the Northern District of California (district court) determined that, while the plain meaning of the word “livestock” as used in the HMSA of 1958 is ambiguous, Congressional intent behind the term was clear and consistent with the interpretation adopted by the USDA.

The Appeals Court said, "Because we conclude that Levine cannot satisfy the redressability prong of Article III standing, we vacate that decision and remand to the district court so that it can dismiss the action." Further, the Appeals Court concluded, "Because Levine’s alleged injuries are not redressable by way of this lawsuit, there is a lack of standing to proceed with this action. Consequently, the decision of the district court granting the USDA’s motion for summary judgment is vacated and the case is remanded with instructions to dismiss."

Access the complete opinion (click here).

Friends Of Tims Ford v. TVA

Nov 6: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-5706. Plaintiff-Appellant Friends of Tims Ford (FTF) appeals from the district court’s dismissal of its case on summary judgment for want of standing. FTF is an unincorporated association of individuals, families, and homeowners’ associations, who own property adjoining the Tims Ford Reservoir (Reservoir) or in adjacent communities, and are concerned about the environmental impact of land development near the Reservoir and the environmental impact of increased boating on, and community use of, Reservoir water. FTF seeks declaratory and injunctive relief against the Tennessee Valley Authority (TVA) and James Fyke, in his official capacity as Commissioner of the Tennessee Department of Environment Conservation (TDEC), for alleged violations of the National Environmental Policy Act of 1969 (NEPA) by TVA and TDEC in their implementation of the Tims Ford Reservoir Land Management and Disposition Plan (LMDP), based on the Final Environmental Impact Statement (FEIS) prepared by TVA and TDEC, and for violations of the TVA Act of 1933 (TVA Act) in the development of two parcels of land, Fanning Bend, and a parcel conveyed to the City of Winchester, Parcel 79B. FTF has also brought state law claims against TDEC.

The Appeals Court agreed with the district court and said, "Because we find that FTF has failed to demonstrate standing to bring this case, we affirm the district court’s decision to dismiss this action without prejudice. The Sixth Circuit further explained its decision saying, ". . .we are compelled to find that FTF has failed its burden to demonstrate standing. Under this theory of harm, FTF has failed to allege future injury that could be redressed by the requested declaratory or injunctive relief, as its two members only allege direct harm from already-constructed community boat docks, yet seek: (1) issuance of a declaratory judgment that implementation of the FEIS/LMDP violates the TVA Act and NEPA; and (2) an injunction against unidentified future construction. . . Furthermore, because FTF’s suit does not additionally seek the destruction or modification of the community boat docks, nor does it seek, as noted by the district court, 'remedial measures to counteract or prevent the harms allegedly caused by the current docks,' there is no value to a declaratory judgment stating that TVA and TDEC violated NEPA and the TVA Act. . . Thus, FTF lacks standing to bring its claim alleging ongoing harm to its members’ aesthetic and recreational enjoyment of the Reservoir."

Access the complete opinion (click here).

Comer v. Murphy Oil USA

Oct 16: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-60756. This case represents another major decision regarding citizen enforcement, utilizing common-law actions and seeking damages resulting from corporate greenhouse gas emissions. The case follows another recent related decision in State of Connecticut v. American Electric Power Co. Inc. issued on September 21, 2009, by the U.S. Court of Appeals, Second Circuit [See WIMS 9/22/09].

As explained by the Appeals Court, the plaintiffs, residents and owners of lands and property along the Mississippi Gulf coast, filed this putative class action in the district court against the named defendants, corporations that have principal offices in other states but are doing business in Mississippi. The plaintiffs allege that defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them.

The plaintiffs’ putative class action asserts claims for compensatory and punitive damages based on Mississippi common-law actions of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. The plaintiffs invoked the district court’s subject-matter jurisdiction based on diversity of citizenship. The plaintiffs do not assert any federal or public law actions and do not seek injunctive relief.

Defendants moved to dismiss plaintiffs’ claims on the grounds that the plaintiffs lack standing to assert their claims and that their claims present "nonjusticiable political questions." The district court granted the motion and dismissed the claims. The plaintiffs timely appealed.

The Appeals Court ruled, "For the reasons discussed herein, we conclude that the plaintiffs have standing to assert their public and private nuisance, trespass, and negligence claims, and that none of these claims present nonjusticiable political questions; but we conclude that their unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims must be dismissed for prudential standing reasons. Accordingly, we reverse the district court’s judgment, dismiss the plaintiffs’ suit in part, and remand the case to the district court for further proceedings."

The Appeals Court explains that the district court began its analysis of the political question doctrine by stating “that the problem [in this case] is one in which this court is simply ill-equipped or unequipped with the power that it has to address these issues.” Describing this suit as a “debate” about global warming. The district court judge said he should not be forced "to balance economic, environmental, foreign policy, and national security interests and make an initial policy determination of a kind which is simply nonjudicial."

In its conclusion the Appeals Court said, "The plaintiffs have pleaded sufficient facts to demonstrate standing for their public and private nuisance, trespass, and negligence claims. We decline to find standing for the unjust enrichment, civil conspiracy, and fraudulent misrepresentation claims and dismiss these claims. We find that the plaintiffs’ remaining claims are justiciable and do not present a political question. We do not hazard, at this early procedural stage, an Erie guess into whether these claims actually state all the elements of a claim under Mississippi tort law, e.g., whether the alleged chain of causation satisfies the proximate cause requirement under Mississippi state common law; we leave this analysis to the district court in the first instance. Thus, for the foregoing reasons, we reverse the judgment of the district court and remand the case to the district court for further proceedings consistent with this opinion."

On attorney, Paul Mollica, with the law firm of Meites, Mulder, Mollica & Glink in Chicago commented on the company blog that, "The headline for this case ought to read: 'Fifth Circuit More Activist Than San-Francisco-Based Court." A panel of Fifth Circuit judges reverse dismissal of a potentially immense tort class action, under Mississippi law, alleging trespass, nuisance and negligence in relation to the emission of greenhouse gasses.'" Mollica concludes his comments saying, "One thought: if anything might prompt Congress to regulate the greenhouse gas field preemptively, it would be the peril of having an incensed Mississippi jury decide the issue instead."

The blog, Global Environmental Law posted a comment on the case saying, "The court held that the case did not pose a nonjusticiable political question and that the plaintiffs had standing in light of the U.S Supreme Court’s decision in Massachusetts v. EPA. While the case returns to the district court for trial, it remains a decided longshot on the merits in light of the attenuated causal link between climate change and Hurricane Katrina. Indeed Judge Davis in a special concurrence opined that the case could be dismissed for failure to allege facts that would establish that GHG emissions from the defendants were a proximate cause of injury from Hurricane Katrina."

Access the complete 36-page opinion (click here). Access the complete blog post by Paul Mollica (click here). Access the complete Global Environmental Law blog post (click here).

State of Connecticut v. American Electric Power Co. Inc.

Sep 21: In the U.S. Court of Appeals, Second Circuit, Case Nos. 05-5104 & 05-5119. In this major 139-page decision regarding citizen and government enforcement of greenhouse gas emissions the Appeals Court summarized saying, the case is appealed from a judgment of the United States District Court for the Southern District of New York that dismissed Plaintiffs-Appellants’ Federal common law of nuisance claims as non-justiciable under the "political question doctrine."

The Appeals Court ruled that, "We hold that: (1) Plaintiffs-Appellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we vacate the judgment of the district court and remand for further proceedings.

The case was finally decided by a two judge panel that noted, "The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter."

By way of background, in 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively Plaintiffs), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively Defendants), seeking abatement of Defendants’ ongoing contributions to the public nuisance of global warming. Plaintiffs claim that global warming, to which Defendants contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, and that as a result of this trapped heat, the earth’s temperature has risen over the years and will continue to rise in the future. Pointing to a "clear scientific consensus" that global warming has already begun to alter the natural world, Plaintiffs predict that it “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”

Plaintiffs brought these actions under the Federal common law of nuisance or, in the alternative, state nuisance law, to force Defendants to "cap and then reduce their carbon dioxide emissions." Defendants moved to dismiss on a number of grounds. The district court held that Plaintiffs’ claims presented a non-justiciable political question and dismissed the complaints.

On appeal, Plaintiffs argue that the political question doctrine does not bar adjudication of their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. Defendants respond that the district court’s judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing; failure to state a claim; and displacement of Federal common law. In addition, Defendant Tennessee Valley Authority (TVA) asserts that the complaints should be dismissed against it on the basis of the discretionary function exception.

The Appeals Court ruled, "We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA’s alternate grounds for dismissal are without merit. We therefore vacate the judgment of the district court and remand for further proceedings."

In its conclusion, the Appeals Court said additionally, "With regard to air pollution, particularly greenhouse gases, this case occupies a niche similar to the one Milwaukee I occupied with respect to water pollution. With that in mind, the concluding words of Milwaukee I have an eerie resonance almost forty years later. To paraphrase: 'It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance' by greenhouse gases. Milwaukee I, 406 U.S. at 106."

The Natural Resources Defense Council (NRDC) issued a release calling the decision "a landmark ruling," that "five large electric power companies can be sued in Federal court because their carbon dioxide emissions contribute to rising temperatures and a host of damaging impacts in other states, including heat waves, smog episodes, droughts and forest fires." NRDC said that the Second Circuit "held that Federal courts are empowered to curb damaging carbon pollution unless and until the legislative and executive branches actually regulate that pollution, either under the existing Clean Air Act or the comprehensive new energy and climate legislation bending in Congress."

Included in the NRDC release was a statement from Matt Pawa, lead attorney for the land trusts Open Space Institute and the Audubon Society of New Hampshire saying, “The court’s decision makes clear that the harms of global warming are real and need to be addressed today. For hundreds of years, courts have been there to protect citizens from harm. Today’s decision opens the way for citizens to protect themselves from the polluters responsible for global warming. Power companies that release millions of tons of dangerous carbon pollution are not above the law.”

Also, David Doniger, senior attorney and policy director for NRDC’s Climate Center said, “The best way to fight global warming is for the Senate to pass comprehensive clean energy and climate legislation. However, the court’s decision guarantees that if the Congress fails to do its job, or blocks EPA from doing its job, the biggest power companies will still be held accountable in the federal courts.”

Access the complete opinion (click here). Access a release from NRDC (click here).

State of Michigan v. EPA

Sep 9: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-2582. As explained by the Appeals Court, the cultural and religious traditions of the Forest County Potawatomi Community (the Community) often require the use of pure natural resources derived from a clean environment. Many years ago, the Community became alarmed by increasing pollution levels in its lakes, wetlands, and forests. To remedy this problem, it submitted a request to U.S. EPA) to redesignate certain tribal lands from Class II to Class I status under the Prevention of Significant Deterioration (PSD) program of the Clean Air Act (the Act). This would have the effect of imposing stricter air quality controls on emitting sources in and around the Community’s redesignated lands.

After nearly fifteen years of administrative proceedings and dispute resolution efforts between the Community and neighboring Wisconsin (which were successful) and Michigan (which were not), the EPA promulgated a final ruling redesignating the Community’s lands to Class I status [See WIMS 4/29/08]. It also issued two companion announcements concluding dispute resolution proceedings with Wisconsin and Michigan. Michigan seeks review of these three final administrative rulings. It asserts that the EPA pursued the redesignation in an improper manner and, as a result, needlessly complicated Michigan’s air quality control programs.

The Appeals Court said, "Because Michigan lacks standing to pursue these claims, we dismiss its petition for review." The Appeals Court stated further in its conclusion, "The Community has waited over fifteen years for finality on the redesignation of its lands. Michigan’s challenge to the EPA’s redesignation actions raises some important issues about the PSD program’s regulatory structure, but Michigan has failed to allege a cognizable injury in fact and thus lacks standing to pursue this case. As a result, the Community need not wait any longer. We dismiss the petition for review."

Access the complete opinion (click here). Access a 6/30/08 release from MDEQ (click here). Access the Dispute Resolution FR announcement (click here). Access the Final Rule FR announcement (click here). Access EPA's docket for this action with complete background information (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).]

Mirant Potomac River, LLC v. EPA

Aug 12: In the U.S. Court of Appeals, Fourth Circuit, Case No. 08-1277. The Appeals Court explained that Mirant Potomac River, LLC (Mirant) appealed the U.S. EPA approval of Virginia’s Clean Air Interstate Rule State Implementation Plan (CAIR SIP). The Court said Mirant’s alleged injury, however, "flows from Virginia’s Nonattainment Provisions, which are separate emissions standards adopted by Virginia’s Air Pollution Control Board (Virginia Board) under the authority of the Virginia legislature. Because Mirant’s injury cannot fairly be traced to EPA’s approval of Virginia’s CAIR SIP, we dismiss for lack of standing."

The Appeals Court also noted in a footnote, "Since we find no subject matter jurisdiction, we need not evaluate a recent decision by Virginia’s Court of Appeals that invalidated a portion of the Nonattainment Provisions. . . Mirant Potomac River, LLC v. Commonwealth of Virginia, State Air Pollution Control Board, 2009 WL 1748524 (Va. Ct. App. June 23, 2009) (unpublished)."

In summary the Appeals Court ruled, ". . .there is no connection -- much less one that is 'fairly traceable' -- between Mirant’s claimed injury and EPA’s approval of Virginia’s CAIR SIP because Virginia’s Nonattainment Provisions and its CAIR SIP are separate regulatory schemes. Virginia’s Nonattainment Provisions are state regulations. They are not part of, and do not directly interfere with, the CAIR SIP approved by EPA. Consequently, Mirant has failed to demonstrate a causal link between its alleged injury and EPA’s approval of Virginia’s CAIR SIP. Mirant has failed to carry its burden of establishing standing."

Access the complete opinion (click here).

US v. Missouri Industrial Energy Consumers

Jun 22: In the U.S. Court of Appeals, Eighth Circuit, Case No. 08-3404. The Missouri Industrial Energy Consumers (MIEC), an association of businesses formed to address its members' concerns about utility services, moved to intervene in an enforcement action filed against the Metropolitan St. Louis Sewer District (District) by the United States and the State of Missouri under the Clean Water Act (CWA). The district court denied the motion for lack of standing. The Appeals Court affirmed the district court decision.

In its decision, the Appeals Court said, "Judicial efficiency is not promoted by allowing intervention by a party with no interest upon which it could seek judicial relief in a separate lawsuit. . . Not only would allowing MIEC to intervene produce no gains in judicial efficiency, it would most likely complicate and delay the proceedings with peripheral issues of cost and local government financing. Although MIEC would certainly like to participate in this enforcement action, 'a federal case is a limited affair, and not everyone with an opinion is invited to attend.'" [citing Mausolf, 85 F.3d at 1301]. . . MIEC has a representative on the District's Rate Commission which makes recommendations about rate changes and will have the opportunity to comment on any proposed rate increases during that public process. The type of grievances that MIEC asserts are properly advanced in these fora, not in this federal action."

Access the complete opinion (click here).

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.

Access the complete majority opinion and concurring and dissenting opinions (click here). Access the Supreme Court Docket for the case (click here). Access the oral argument transcript (click here). Access links to briefs filed in the case (click here). Access the opinion of the Ninth Circuit (click here).