Summers v. Earth Island Institute

Administrative Law: Final Agency Action/Nationwide Injunction

Public Citizen Litigation Group is assisting in representing a coalition of environmental groups in the Supreme Court of the United States in this case, in which the federal government seeks to limit dramatically the ability of citizens to challenge unlawful government regulations. The environmental groups filed the case originally to challenge the Forest Service’s promulgation of a regulation that deprives them of their statutory right to comment on and administratively appeal decisions of the Forest Service that implement forest plans. The lower courts ruled that the regulation was unlawful. Without challenging that determination, the federal government sought review by the Supreme Court, arguing that the lower courts should not have decided the case because it was not “ripe” for review and/or because the environmental groups lacked standing to challenge the rule. The government also argued that the lower courts should not have set aside the rule nationwide even if they were correct in determining that it was unlawful.

We assisted in the preparation of a brief opposing the granting of certiorari, and, when the Court nonetheless determined to hear the case, we assisted in preparing the respondents’ brief on the merits and helped respondents’ counsel prepare for argument in the case.

The questions presented were:

1. Did the Court of Appeals err in allowing a facial challenge to one set of regulatory provisions and dismissing challenges to seven others on ripeness grounds, where there is no dispute that the one set of rules allowed to be reviewed had been applied countless times by the Forest Service, including an application of the rules to a site-specific action challenged in the district court?
2. Did the respondents have standing, where it is undisputed that the challenged regulations had been applied to them countless times, including an application of the rules to a site-specific action challenged in the district court for which standing was not challenged?
3. Did the facial rule challenge become moot, where the site-specific action was preliminarily enjoined and then the challenges to it were settled, but there is no dispute that the agency continued to apply the regulations to countless other site-specific actions that adversely affected respondents?
4. Did the Ninth Circuit err in finding that the district court did not abuse its discretion in completely setting aside the challenged regulations instead of limiting relief to the Eastern District of California, where respondents are organizations affected by the challenged regulations throughout the country?

On March 3, 2009, the Supreme Court decided the case. See 129 S. Ct. 1142. The Court reversed the Ninth Circuit on only one of the issues raised by the government, holding that the respondents lacked standing because the declarations they filed in the district court did not specifically enough allege injuries resulting from the application of the regulation in particular national forests. The ruling did not significantly alter the law of standing and did not adopt the government’s broad theories that facial challenges to regulations are generally unavailable under the Administrative Procedure Act and that the Act does not authorize nationwide relief against unlawful regulations.