Jeffrey Scott, 2L

Contributor

On March 3, 2009, the Supreme Court issued a 5-4 decision holding that respondents, environmentalist organizations, lacked standing to challenge regulations enacted by the United States Forest Service.

The respondents sought to enjoin the Forest Service from applying its regulations to exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process. Justice Scalia wrote the majority opinion, joined by Chief Justice Roberts, and Justice Kennedy, Justice Thomas, and Justice Alito.

The majority did not reach the merits of these challenges because the respondent organizations lacked constitutional (Article III) standing. A plaintiff has constitutional standing if she demonstrates that: (1) an injury in fact is concrete and particularized; (2) the threat is actual and imminent; (3) it is fairly traceable to the defendant’s challenged action; and (4) a favorable judicial decision will likely prevent or redress the injury.

The Court determined that the respondents did not identify an organization member that faced an imminent and concrete harm that was tied to the application of the challenged regulation. Although one organization member, Ara Marderosian, had a concrete injury that would satisfy the constitutional standing requirement, that dispute had already been settled. Therefore, the Supreme Court declared Marderosian’s injury was “not at issue in this case.”

Next, the respondents relied on the affidavit of organization member Jim Bensman. The affidavit asserts that Bensman visited numerous national forests and plans to visit several unnamed ones in the future. The Court found that Bensman did not satisfy the imminent injury requirement because he did not provide any description of concrete plans to visit national forests in the future.

Justice Breyer’s dissent, joined by Justices Stevens, Souter, and Ginsburg, took issue with the kind of specificity the majority suggested the law of standing requires. The dissent proposed a test for organizational standing: whether there is a “realistic likelihood” of future harm. Therefore, standing would be satisfied if the respondent organizations could show that there is a realistic threat that reoccurrence of the challenged activity would cause them harm in the reasonably near future.

For obvious reasons, environmentalist organizations cannot be too pleased with this decision. They would gladly welcome the organizational standing test offered by the dissent, as it would seemingly expand their standing.

However, the majority opinion does not restrain environmental groups from bringing the same sort of challenges in the future. If Marderosian’s injury sufficiently established standing, then environmental groups must wait until a similar set of circumstances arises. There must first be a fire, an agency regulation that was exempt from notice and comment, and a plaintiff who has a concrete injury stemming from those regulations. If all of these conditions are satisfied, then standing in future cases should not be a problem.