On March 3, 2009, the Supreme Court decided Summers v. Earth Island Institute, No. 07-463.
U.S. Forest Service regulations exempt fire-rehabilitation projects affecting fewer than 4,200 acres and timber-salvage projects affecting fewer than 250 acres from the notice, comment, and appeal procedures that generally apply to such projects. Several environmental groups challenged the application of this exemption to a proposed sale of timber from a 238-acre tract in a national forest in California that had been damaged by a fire. The district court preliminarily enjoined the sale, and the dispute was then settled, but the court nevertheless decided the merits of the groups' claims, holding that the regulations violated the relevant statute and enjoining their application nationwide.
The question presented to the Court was whether the plaintiff groups continued to have standing to challenge the regulations after their claims concerning the regulations' specific application had been settled. The Court held that they did not. Standing exists only if a specific member of the plaintiff group is threatened with "injury in fact" that is actual and imminent, rather than generalized or hypothetical. Once the alleged threat to the specific area at issue in this case had been resolved by the parties' settlement, no such threat of specific injury remained. The Court rejected the suggestion that the size of the plaintiff groups established a statistical probability that some of its members, although unidentified, were threatened with the requisite injury.
Justice Scalia delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Alito joined. Justice Kennedy filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Stevens, Souter, and Ginsburg joined.