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October Term, 2008

March 3, 2009

Today the Supreme Court issued a decision, described below, of interest to the business community.

Summers v. Earth Island Institute, No. 07-463 (previously discussed in the January 21, 2008 Docket Report).

The doctrine of standing arises from Article III of the U.S. Constitution, which limits the power of courts to the decision of “Cases” and “Controversies.” The doctrine requires that a plaintiff allege actual or threatened injury that is concrete and particularized, such that action by a federal court will protect the plaintiff’s interests. Today, in Summers v. Earth Island Institute, No. 07-463, the Supreme Court held that the standing doctrine prevents a plaintiff from challenging agency regulations in the absence of a live dispute over a concrete application of the regulations.

In Summers, various environmental groups challenged U.S. Forest Service regulations exempting small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process. The organizations initially challenged the application of the regulations to the Burnt Ridge Project, a salvage sale of timber damaged by a fire in Sequoia National Forest. The parties subsequently settled their dispute with respect to that project. The district court and the Ninth Circuit nevertheless proceeded to adjudicate the merits of the challenge to the regulations and invalidated some of them.

In an opinion by Justice Scalia, a five-Justice majority of the Supreme Court reversed. The Court held that the environmental groups lacked standing to challenge the regulations because, after settlement of the controversy with respect to the Burnt Ridge Project, there was no longer any concrete and particularized injury to the organizations. The Court explained that the groups had identified no “application of the invalidated regulations that threatens imminent and concrete harm” to the interests of their members, and instead sought to challenge the regulations “in the abstract.” Slip op. 6. Without any “particular timber sale or other project claimed to be unlawfully subject to the regulations” that would impede a member’s “specific and concrete plan * * * to enjoy the National Forests,” the Court concluded, the organizations did not have standing. Id. at 7.

Justice Kennedy wrote a short concurrence, arguing that the case “would present different considerations if Congress had sought to provide redress for a concrete injury giving rise to a case or controversy where none existed before.” Slip op. 1 (concurring opinion). Justice Breyer wrote a dissenting opinion that was joined by Justices Stevens, Souter, and Ginsburg. The dissent took a less strict view than the majority of the requirements for Article III standing and disagreed with the majority’s conclusion that the environmental groups’ asserted injuries were merely “conjectural” or “hypothetical.” Slip op. 3, 5 (dissenting opinion).

In another decision today, the Supreme Court handed a victory to Mayer Brown and its client in Negusie v. Holder, No. 07-499, a case argued by Andrew Pincus, in which the Court held that the Board of Immigration Appeals had committed legal error in concluding that the so-called “persecutor bar” to refugee status applies even if the alien’s assistance in persecution was the product of coercion or duress.

Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).
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