Summers v. Earth Island Institute - Oral Argument - October 08, 2008

Summers v. Earth Island Institute

Media for Summers v. Earth Island Institute

Audio Transcription for Opinion Announcement - March 03, 2009 in Summers v. Earth Island Institute

Audio Transcription for Oral Argument - October 08, 2008 in Summers v. Earth Island Institute

John G. Roberts, Jr.:

We will hear argument next in Case 07-463, Summers v. Earth Island Institute.

Mr. Kneedler.

Edwin S. Kneedler:

Mr. Chief Justice, and may it please the Court: The Ninth Circuit's affirmance of a nationwide injunction in this case is contrary to bedrock principles of Article III standing, of the availability and scope of judicial review under the Administrative Procedure Act, and the granting of equitable relief.

As this case was decided by the district court and as it comes to this Court, it involves a stand-alone challenge to two regulations that govern the procedures to be followed by the Forest Service in deciding whether to approve individual site-specific activities in national forests.

The two regulations provide that site-specific actions that are excluded from either an environmental impact requirement or even an EA under NEPA are also not subject to special noticing and comment and administrative appeal provisions applicable to the Forest Service.

The Ninth Circuit sustained the district court's nationwide injunction as to those procedural regulations standing alone, not as part of a challenge to a specific site-specific activity.

The court did so, moreover, on the basis of an affidavit from one member of one of the organizations who could not begin to establish standing under this Court's decisions by showing an imminent injury by virtue of harm to a site-specific activity; and the Court affirmed the nationwide injunction applicable to all forests with respect to all projects listed in ten categories identified by the district court, including national forests and projects that don't even -- that are not even included within that one declarant's generalized interests in certain natural forests.

For the multiple combination -- combination of multiple reasons, we think the Ninth Circuit's decision cannot stand.

First, as with respect to standing, the one declaration on which both the district court and the court of appeals rely is the declaration of Mr. Bensman, which is reproduced in the petition appendix.

And on page 70A and 71A are the only allegations of -- that go to injury at all with respect to the particular regulations at issue here from paragraph 15 on to -- the bottom of 71A on, those are allegations concerning other regulations that are no longer at issue.

Stephen G. Breyer:

Standing itself, I mean, it's a little unusual.

Suppose -- I mean, Congress here has passed a statute and the statute specifically aims at a class of litigants.

And it says to the class of litigants, if you are a member of it, we are telling you what we want the agency to do and that is to promulgate a certain appeal procedure.

Now, if you are a member of the class that frequently litigates and you frequently take advantage of that procedure, why aren't you heard as a litigant, at least enough for Article III?

And we know as far as prudential standing is concerned, Congress wanted to give you standing, so I think would it take care of that.

Are you saying no matter -- that just normal litigants in the courts who reappear time and time again in certain kinds of cases, don't have standing to challenge a procedural rule, if Congress under Article III and Congress specifically tells them they can?

Edwin S. Kneedler:

Congress has not specifically said that they may challenge--

Stephen G. Breyer:

Let's imagine that Congress did, Congress did say: By the way, lawyers who have handled 17 tort cases in the last year where the value has been more than $500,000 and who will sign an affidavit saying they intend to continue in that branch may appeal from the court's promulgation of the following general rule, dah, dah, dah.

And that Constitution prohibits Congress from doing that?

Edwin S. Kneedler:

--Well, first of all, I don't think it could be lawyers.

It has to be a party.

Stephen G. Breyer:


Those who -- fine, forget that, yeah.

Edwin S. Kneedler:

I think there would be substantial doubt that Congress could do that, because let me explain why, and this goes to a point that Justice Scalia was making in the prior argument.

Procedural wrong is not Article III injury.

The injury in this case comes from the application of the regulation in a specific site-specific--

Stephen G. Breyer:

You mean Article III and at Westminster -- at Westminster, when Westminster, whatever they had, they must have had some procedural rules, and sometimes they had general procedural rules -- I don't know what the history is; I could look it up.

But I would be amazed if the lawyers at that time or the clients who had certain cases were not permitted to challenge those rules as contrary to some other rules.

Do we know the answer to that?

Edwin S. Kneedler:

--Well, if -- if Congress--