Chapter 10: Environmental Enforcement

Whistleblower Protection Provisions
p. 939 (5th edition): The environmental laws are not the only federal statutes with whistle-blower protection provisions.  The Sarbanes-Oxley Act also prohibits retaliation against employees who report corporate wrongdoing.  A study released in 2008 reported that overall the DOL had received a total of 1,273 whistle-blower complaints since 2002, but that it had ruled in favor of whistleblowers in only 17 cases while dismissing 841 cases.  Jennifer Levitz, Whistleblowers Are Left Dangling, Wall St. J., Sept. 4, 2008, at A3.  Many cases were dismissed on the questionable grounds that whistle-blower protections did not apply to employees of a corporate subsidiary.  The U.S. Department of Justice's Office of Legal Counsel issued an opinion letter on Sept. 23, 2005, concluding that the whistle-blower protection provisions of the Clean Water Act do not apply to EPA because the statute, unlike RCRA or the Safe Drinking Water Act, does not include an express waiver of federal sovereign immunity. Steven G. Bradbury, Waiver of Sovereign Immunity with Respect to Whistleblower Provisions of Environmental Statutes, Sept. 23, 2005.

Imposing Additional Monitoring Requirements in Enforcement Actions
p. 939 (5th edition): In response to violations of the environmental laws, enforcement authorities sometimes seek to impose additional monitoring requirements on violators.  In August 2007 the U.S. Department of Justice announced that it had reached a settlement with the Jupiter Aluminum Corporation to pay a $2 million civil penalty for violations of the national emissions standards for hazardous air pollutants.  The settlement included a requirement that the company fund an independent monitoring consultant and allow local environmental authorities to install and operate a video monitoring system to enable them to observe operations at an aluminum furnace.

EPA Policy Statement on Incentives for Self-Policing: New Owners
p. 941 (5th edition): On August 1, 2008, EPA issued a new policy to encourage new owners of facilities to perform environmental audits and to voluntarily disclose and correct environmental violations.  EPA,"Interim Approach to Applying the Audit Policy to New Owners," 73 Fed. Reg. 44991 (2008).  The policy defines a new owner as someone who has owned a facility for less than nine months.  The policy encourages auditing and reporting by promising reduced civil penalties for violations disclosed to EPA during the first nine months of ownership.  EPA also is experimenting with a new web-based system to allow companies to electronically self-disclose violations and take advantage of the Audit Policy.  See http://www.epa.gov/oecaerth/incentives/auditing/edisclosure.html.

Penalties for CAA Violations
p. 948 (5th edition): Penalties for the most serious criminal violations of the Clean Air Act (CAA) now can include imprisonment for up to 15 years and a fine of up to $1 million for each violation.  CAA §113(c)(5).  In October 2007, a subsidiary of British Petroleum agreed to pay a $50 million fine, the largest criminal fine ever under the CAA, for violations associated with a catastrophic refinery explosion in Texas that killed 15 employees.

Criminal Enforcement
p. 962 (5th edition): EPA now has 185 special agents who carry firearms, investigate environmental crimes, and make arrests, and the agency hopes to hire additional agents in the near future.  Thirty EPA lawyers now focus exclusively on criminal enforcement matters. Martin Harrell, Joseph J. Lisa, and Catherine L. Votaw, Federal Environmental Crime: A Different Kind of "White Collar" Prosecution, 23 Nat. Res. & Env't 3 (Winter 2009).

The Crime Victim's Rights Act (CVRA), 18 U.S.C. §3771, grants victims of crime the "reasonable right to confer with the attorney for the government" in order to inform the plea negotiation process by conferring with prosecutors before a plea agreement is reached .  In the case of In re Dean, 527 F.3d 391 (5th Cir. 2008), the Fifth Circuit held that the government had violated the CVRA by not meeting with victims of a chemical explosion before negotiating a settlement of criminal charges under the Clean Air Act.  In another Clean Air Act case involving Citgo Petroleum Corporation a federal district court held a nine-day presentencing hearing to assess potential harm to the health of persons exposed to toxic vapors that had been illegally released. Judson W. Starr, Brian L. Flack & Allison D. Foley, A New Intersection: Environmental Crimes and Victims' Rights, 23 Nat. Res. & Env't 41 (Winter 2009).

New Problem Exercise: Who Should Be Prosecuted Criminally?
p. 975 (5th edition): As discussed above, the exercise of prosecutorial discretion in deciding when to invoke the criminal sanctions in the environmental laws has been a topic of considerable controversy.  Consider the following seven real-life scenarios posed by three EPA and Department of Justice enforcement attorneys in Martin Harrell, Joseph J. Lisa, and Catherine L. Votaw, Federal Environmental Crime: A Different Kind of "White Collar" Prosecution, 23 Nat. Res. & Env't 3, 4 (Winter 2009).

"1. A businessman with no criminal history stores hazardous waste for two years at a closed facility because he supposedly lacks funds to pay for disposal. He does not tell anyone about this storage while he deals with environmental regulators on other matters and operates a similar business nearby. The waste is discovered when a citizen reports smelling fumes, and the government spends $130,000 to clean up the location to protect neighbors." Should the businessman be prosecuted criminally?

"2. A lazy or disinterested sewage treatment plant technician or private laboratory analyst does not perform effluent tests and then fabricates analytical results. It is impossible to determine if environmental violations occurred because the tests were not actually done. The individual did not obtain any monetary benefit from his conduct, has no criminal history, and loses his job." Should the technician be prosecuted criminally?

"3. A supervisor fails to check the label on some containers of dangerous but unwanted material and dumps it into a sanitary sewer, disrupting the public sewage treatment plant and causing the death of 1,000 small fish in a creek. The company has a good environmental record." Should the supervisor be prosecuted criminally?

"4. A company has five nonpermitted discharges from multiple mining operations into already heavily polluted streams over two years, all resulting from equipment failure or operator error. Three of the discharges discolor miles of stream and result in small fish kills." Should the company be prosecuted criminally?

"5. A 50,000-person municipality receives several Notices of Violation over five years for storing hazardous waste longer than permitted and under poor conditions. After complying for a year, the city is caught again storing hazardous waste longer than permitted. It turns out that the city has no organized environmental compliance management system." Should the municipality be prosecuted criminally?

"6. A 65-year-old businessman quietly empties wastewater down a sink connected to a publicly owned treatment works (POTW) designed to handle only domestic waste. He does not tell the POTW, but an employee informs a local regulator. A sampling device confirms metals are being discharged into the sewer system from his facility but not above categorical pretreatment limits. The businessman previously served a prison sentence for pretreatment violations at another facility." Should the businessman be prosecuted criminally?

"7. An 81-year-old businessman with a long history of charitable works hires an asbestos abatement contractor to remove insulation prior to selling industrial property but pays his “handyman” to drain and dispose of 400 gallons of known polychlorinated biphenyl (PCB) fluid from two old transformers. The businessman had received two bids of more than $10,000 from reputable companies to dispose of the fluid. The fluid disappears, and PCB contamination is discovered in a nearby sanitary sewer. " Should the businessman be prosecuted criminally?

Standing to Challenge Public Land Management Decisions: Summers v. Earth Island Institute
p. 1024 (5th edition): After Justice Scalia's narrow view of environmental standing was decisively rejected in Laidlaw and narrowed rejecting it in Massachusetts v. EPA,  Justice Scalia was able to resurrect it in the case below after environmental plaintiffs settled the portion of their challenge to national forest management regulations that pertained to a specific timber project.
Summers v. Earth Island Institute
129 S.Ct. 1142 (2009)

Justice SCALIA delivered the opinion of the Court.

Respondents are a group of organizations dedicated to protecting the environment. (We will refer to them collectively as “Earth Island.”) They seek to prevent the United States Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions. We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations.

I

In 1992, Congress enacted the Forest Service Decisionmaking and Appeals Reform Act. Among other things, this required the Forest Service to establish a notice, comment, and appeal process for “proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans developed under the Forest and Rangeland Renewable Resources Planning Act of 1974.”

The Forest Service's regulations implementing the Act provided that certain of its procedures would not be applied to projects that the Service considered categorically excluded from the requirement to file an environmental impact statement (EIS) or environmental assessment (EA). Later amendments to the Forest Service's manual of implementing procedures, adopted by rule after notice and comment, provided that fire-rehabilitation activities on areas of less than 4,200 acres, and salvage-timber sales of 250 acres or less, did not cause a significant environmental impact and thus would be categorically exempt from the requirement to file an EIS or EA. This had the effect of excluding these projects from the notice, comment, and appeal process.

In the summer of 2002, fire burned a significant area of the Sequoia National Forest. In September 2003, the Service issued a decision memo approving the Burnt Ridge Project, a salvage sale of timber on 238 acres damaged by that fire. Pursuant to its categorical exclusion of salvage sales of less than 250 acres, the Forest Service did not provide notice in a form consistent with the Appeals Reform Act, did not provide a period of public comment, and did not make an appeal process available.

In December 2003, respondents filed a complaint in the Eastern District of California, challenging the failure of the Forest Service to apply to the Burnt Ridge Project § 215.4(a) of its regulations implementing the Appeals Reform Act (requiring prior notice and comment), and § 215.12(f) of the regulations (setting forth an appeal procedure). The complaint also challenged six other Forest Service regulations implementing the Act that were not applied to the Burnt Ridge Project. They are irrelevant to this appeal.

The District Court granted a preliminary injunction against the Burnt Ridge salvage-timber sale. Soon thereafter, the parties settled their dispute over the Burnt Ridge Project and the District Court concluded that “the Burnt Ridge timber sale is not at issue in this case.” Earth Island Inst. v. Pengilly, 376 F.Supp.2d 994, 999 (E.D.Cal.2005). The Government argued that, with the Burnt Ridge dispute settled, and with no other project before the court in which respondents were threatened with injury in fact, respondents lacked standing to challenge the regulations; and that absent a concrete dispute over a particular project a challenge to the regulations would not be ripe. The District Court proceeded, however, to adjudicate the merits of Earth Island's challenges. It invalidated five of the regulations (including §§ 215.4(a) and 215.12(f)), and entered a nationwide injunction against their application. . . .

The Government sought review of the question whether Earth Island could challenge the regulations at issue in the Burnt Ridge Project, and if so whether a nationwide injunction was appropriate relief.

II

. . . The doctrine of standing is one of several doctrines that reflect this fundamental limitation. It requires federal courts to satisfy themselves that “the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction.”  He bears the burden of showing that he has standing for each type of relief sought. To seek injunctive relief, a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181 (2000). . . .

The regulations under challenge here neither require nor forbid any action on the part of respondents. The standards and procedures that they prescribe for Forest Service appeals govern only the conduct of Forest Service officials engaged in project planning. “[W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” Defenders of Wildlife, supra, at 562. Here, respondents can demonstrate standing only if application of the regulations by the Government will affect them in the manner described above.

It is common ground that the respondent organizations can assert the standing of their members. To establish the concrete and particularized injury that standing requires, respondents point to their members' recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice. Sierra Club v. Morton, 405 U.S. 727, 734-736 (1972).

Affidavits submitted to the District Court alleged that organization member Ara Marderosian had repeatedly visited the Burnt Ridge site, that he had imminent plans to do so again, and that his interests in viewing the flora and fauna of the area would be harmed if the Burnt Ridge Project went forward without incorporation of the ideas he would have suggested if the Forest Service had provided him an opportunity to comment. The Government concedes this was sufficient to establish Article III standing with respect to Burnt Ridge. Marderosian's threatened injury with regard to that project was originally one of the bases for the present suit. After the District Court had issued a preliminary injunction, however, the parties settled their differences on that score. Marderosian's injury in fact with regard to that project has been remedied, and it is, as the District Court pronounced, “not at issue in this case.” 376 F.Supp.2d, at 999. We know of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action (here, the regulation in the abstract), apart from any concrete application that threatens imminent harm to his interests. Such a holding would fly in the face of Article III's injury-in-fact requirement.

Respondents have identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members. The only other affidavit relied on was that of Jim Bensman. He asserted, first, that he had suffered injury in the past from development on Forest Service land. That does not suffice for several reasons: because it was not tied to application of the challenged regulations, because it does not identify any particular site, and because it relates to past injury rather than imminent future injury that is sought to be enjoined.

Bensman's affidavit further asserts that he has visited many National Forests and plans to visit several unnamed National Forests in the future. Respondents describe this as a mere failure to “provide the name of each timber sale that affected [Bensman's] interests.” It is much more (or much less) than that. It is a failure to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of Bensman's to enjoy the National Forests. The National Forests occupy more than 190 million acres, an area larger than Texas. There may be a chance, but is hardly a likelihood, that Bensman's wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations. Indeed, without further specification it is impossible to tell which projects are (in respondents' view) unlawfully subject to the regulations. The allegations here present a weaker likelihood of concrete harm than that which we found insufficient in Lyons, 461 U.S. 95,where a plaintiff who alleged that he had been injured by an improper police chokehold sought injunctive relief barring use of the hold in the future. We said it was “no more than conjecture” that Lyons would be subjected to that chokehold upon a later encounter. Here we are asked to assume not only that Bensman will stumble across a project tract unlawfully subject to the regulations, but also that the tract is about to be developed by the Forest Service in a way that harms his recreational interests, and that he would have commented on the project but for the regulation. Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact.

The Bensman affidavit does refer specifically to a series of projects in the Allegheny National Forest that are subject to the challenged regulations. It does not assert, however, any firm intention to visit their locations, saying only that Bensman “ ‘want[s] to’ ” go there. vague desire to return is insufficient to satisfy the requirement of imminent injury: “Such ‘some day’ intentions-without any description of concrete plans, or indeed any specification of when the some day will be-do not support a finding of the ‘actual or imminent’ injury that our cases require.” Defenders of Wildlife, 504 U.S., at 564.

Respondents argue that they have standing to bring their challenge because they have suffered procedural injury, namely that they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied. But deprivation of a procedural right without some concrete interest that is affected by the deprivation-a procedural right in vacuo-is insufficient to create Article III standing. Only a “person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.” Id., at 572, n. 7 (emphasis added). Respondents alleged such injury in their challenge to the Burnt Ridge Project, claiming that but for the allegedly unlawful abridged procedures they would have been able to oppose the project that threatened to impinge on their concrete plans to observe nature in that specific area. But Burnt Ridge is now off the table.

It makes no difference that the procedural right has been accorded by Congress. That can loosen the strictures of the redressability prong of our standing inquiry -- so that standing existed with regard to the Burnt Ridge Project, for example, despite the possibility that Earth Island's allegedly guaranteed right to comment would not be successful in persuading the Forest Service to avoid impairment of Earth Island's concrete interests. Unlike redressability, however, the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute. . . .

III

The dissent proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization's self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. Since, for example, the Sierra Club asserts in its pleadings that it has more than “ ‘700,000 members nationwide, including thousands of members in California’ ” who “ ‘use and enjoy the Sequoia National Forest,’ ” it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service's procedures and will suffer (unidentified) concrete harm as a result. This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm. In Defenders of Wildlife we held that the organization lacked standing because it failed to “submit affidavits ... showing, through specific facts ... that one or more of [its] members would ... be ‘directly’ affected” by the allegedly illegal activity. Morton involved the same Sierra Club that is a party in the present case, and a project in the Sequoia National Forest. The principal difference from the present case is that the challenged project was truly massive, involving the construction of motels, restaurants, swimming pools, parking lots, and other structures on 80 acres of the Forest, plus ski lifts, ski trails, and a 20-mile access highway. We did not engage in an assessment of statistical probabilities that one of the Sierra Club's members would be adversely affected, but held that the Sierra Club lacked standing. . . .

Justice KENNEDY, concurring.

I join in full the opinion of the Court. As the opinion explains, “deprivation of a procedural right without some concrete interest that is affected by the deprivation -- a procedural right in vacuo -- is insufficient to create Article III standing.” The procedural injury must “impair a separate concrete interest.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 (1992).
This case would present different considerations if Congress had sought to provide redress for a concrete injury “giv[ing] rise to a case or controversy where none existed before.”  Id.  at 580 (KENNEDY, J., concurring in part and concurring in judgment). Nothing in the statute at issue here, however, indicates Congress intended to identify or confer some interest separate and apart from a procedural right.

Justice BREYER, with whom Justice STEVENS, Justice SOUTER, and Justice GINSBURG join, dissenting.

The Court holds that the Sierra Club and its members (along with other environmental organizations) do not suffer any “ ‘concrete injury’ ” when the Forest Service sells timber for logging on “many thousands” of small (250-acre or less) woodland parcels without following legally required procedures-procedures which, if followed, could lead the Service to cancel or to modify the sales. Nothing in the record or the law justifies this counterintuitive conclusion.

I

. . .The majority says that the plaintiffs lack constitutional standing to raise [their] claim. It holds that the dispute between the five environmental groups and the Forest Service consists simply of an abstract challenge; it does not amount to the concrete “Cas[e]” or “Controvers[y]” that the Constitution grants federal courts the power to resolve. Art. III, § 2, cl. 1. I cannot agree that this is so.

To understand the constitutional issue that the majority decides, it may prove helpful to imagine that Congress enacted a statutory provision that expressly permitted environmental groups like the respondents here to bring cases just like the present one, provided (1) that the group has members who have used salvage-timber parcels in the past and are likely to do so in the future, and (2) that the group's members have opposed Forest Service timber sales in the past (using notice, comment, and appeal procedures to do so) and will likely use those procedures to oppose salvage-timber sales in the future. The majority cannot, and does not, claim that such a statute would be unconstitutional. See  Massachusetts v. EPA, 549 U.S. 497, 516-518, Sierra Club v. Morton, 405 U.S. 727, 734-738 (1972).  How then can it find the present case constitutionally unauthorized?

I believe the majority answers this question as follows: It recognizes, as this Court has held, that a plaintiff has constitutional standing if the plaintiff demonstrates (1) an “ ‘injury in fact,’ ” (2) that is “fairly traceable” to the defendant's “challenged action,” and which (3) a “favorable [judicial] decision” will likely prevent or redress. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181 (2000). The majority does not deny that the plaintiffs meet the latter two requirements. It focuses only upon the first, the presence of “actual,” as opposed to “conjectural or hypothetical,” injury. In doing so, it properly agrees that the “organizations” here can “assert the standing of their members.” It points out that injuries to the “members' recreational” or even “mere esthetic interests ... will suffice.”  It does not claim that the procedural nature of the plaintiffs' claim makes the difference here, for it says only that “deprivation of a procedural right without some concrete interest” thereby affected, i.e., “a procedural right in vacuo” would prove “insufficient to create Article III standing.” The majority assumes, as do I, that these unlawful Forest Service procedures will lead to substantive actions, namely the sales of salvage timber on burned lands, that might not take place if the proper procedures were followed. But the majority then finds that the plaintiffs have not sufficiently demonstrated that these salvage-timber sales cause plaintiffs an actual injury, that is, harm to the recreational, aesthetic, or other environmental interests of organization members. To put the matter in terms of my hypothetical statute, the majority holds that the plaintiff organizations, while showing that they have members who have used salvage-timber sale parcels in the past ( i.e., parcels that the Service does not subject to the notice, comment, and appeal procedures required by law), have failed to show that they have members likely to use such parcels in the future.

II

How can the majority credibly claim that salvage-timber sales, and similar projects, are unlikely to harm the asserted interests of the members of these environmental groups? The majority apparently does so in part by arguing that the Forest Service actions are not “imminent”-a requirement more appropriately considered in the context of ripeness or the necessity of injunctive relief. I concede that the Court has sometimes used the word “imminent” in the context of constitutional standing. But it has done so primarily to emphasize that the harm in question-the harm that was not “imminent”-was merely “conjectural” or “hypothetical” or otherwise speculative. Where the Court has directly focused upon the matter, i.e., where, as here, a plaintiff has already been subject to the injury it wishes to challenge, the Court has asked whether there is a realistic likelihood that the challenged future conduct will, in fact, recur and harm the plaintiff. That is what the Court said in Los Angeles v. Lyons, 461 U.S. 95 (1983), a case involving a plaintiff's attempt to enjoin police use of chokeholds. The Court wrote that the plaintiff, who had been subject to the unlawful chokehold in the past, would have had standing had he shown “a realistic threat” that reoccurrence of the challenged activity would cause him harm “in the reasonably near future.” Precedent nowhere suggests that the “realistic threat” standard contains identification requirements more stringent than the word “realistic” implies.

How could the Court impose a stricter criterion? Would courts deny standing to a holder of a future interest in property who complains that a life tenant's waste of the land will almost inevitably hurt the value of his interest -- though he will have no personal interest for several years into the future? Would courts deny standing to a landowner who complains that a neighbor's upstream dam constitutes a nuisance -- even if the harm to his downstream property (while bound to occur) will not occur for several years? Would courts deny standing to an injured person seeking a protection order from future realistic (but nongeographically specific) threats of further attacks?

To the contrary, a threat of future harm may be realistic even where the plaintiff cannot specify precise times, dates, and GPS coordinates. Thus, we recently held that Massachusetts has standing to complain of a procedural failing, namely, EPA's failure properly to determine whether to restrict carbon dioxide emissions, even though that failing would create Massachusetts-based harm which (though likely to occur) might not occur for several decades. Massachusetts v. EPA. The Forest Service admits that it intends to conduct thousands of further salvage-timber sales and other projects exempted under the challenged regulations “in the reasonably near future.” How then can the Court deny that the plaintiffs have shown a “realistic” threat that the Forest Service will continue to authorize (without the procedures claimed necessary) salvage-timber sales, and other Forest Service projects, that adversely affect the recreational, aesthetic, and environmental interests of the plaintiffs' members?

Consider: Respondents allege, and the Government has conceded, that the Forest Service took wrongful actions (such as selling salvage timber) “thousands” of times in the two years prior to suit. The Complaint alleges, and no one denies, that the organizations, the Sierra Club for example, have hundreds of thousands of members who use forests regularly across the Nation for recreational, scientific, aesthetic, and environmental purposes. The Complaint further alleges, and no one denies, that these organizations (and their members), believing that actions such as salvage-timber sales harm those interests, regularly oppose salvage-timber sales (and similar actions) in proceedings before the agency. And the Complaint alleges, and no one denies, that the organizations intend to continue to express their opposition to such actions in those proceedings in the future.

Consider further: The affidavit of a member of Sequoia ForestKeeper, Ara Marderosian, attached to the Complaint, specifies that Marderosian had visited the Burnt Ridge Project site in the past and intended to return. The majority concedes that this is sufficient to show that Marderosian had standing to challenge the Burnt Ridge Project. The majority must therefore agree that “at least one identified member ha[s] suffered ... harm.” Why then does it find insufficient the affidavit, also attached to the Complaint, of Jim Bensman, a member of Heartwood, Inc.? That affidavit states, among other things, that Bensman has visited 70 National Forests, that he has visited some of those forests “hundreds of times,” that he has often visited the Allegheny National Forest in the past, that he has “probably commented on a thousand” Forest Service projects including salvage-timber sale proposals, that he intends to continue to comment on similar Forest Service proposals, and that the Forest Service plans in the future to conduct salvage-timber sales on 20 parcels in the Allegheny National Forest-one of the forests he has visited in the past.

The Bensman affidavit does not say which particular sites will be affected by future Forest Service projects, but the Service itself has conceded that it will conduct thousands of exempted projects in the future. Why is more specificity needed to show a “realistic” threat that a project will impact land Bensman uses? To know, virtually for certain, that snow will fall in New England this winter is not to know the name of each particular town where it is bound to arrive. The law of standing does not require the latter kind of specificity. How could it? And Sierra Club v. Morton, on which the majority so heavily relies, involved plaintiffs who challenged (true, a “massive”) development, but only on a single previously determined site, about 80 acres in size, in a portion of the forest with a “limited ... number of visitors.” The Court's unwillingness to infer harm to the Sierra Club's members there does not demand a similar unwillingness here, where the challenge is to procedures affecting “thousands” of sites, involving hundreds of times as much acreage, where the precise location of each may not yet be known. In Sierra Club, ibid., it may have been unreasonable simply to assume that members would suffer an “injury in fact.” But here, given the very different factual circumstances, it is unreasonable to believe they would not.. . .

These allegations and affidavits more than adequately show a “realistic threat” of injury to plaintiffs brought about by reoccurrence of the challenged conduct-conduct that the Forest Service thinks lawful and admits will reoccur. Many years ago the Ninth Circuit warned that a court should not “be blind to what must be necessarily known to every intelligent person.” In re Wo Lee, 26 F. 471, 475 (1886). Applying that standard, I would find standing here.

NOTES AND QUESTIONS

1.  Is the Court's decision consistent with its holding in Massachusetts v. EPA, discussed in Chapter 2 on p. 110, that the impact of climate change is sufficient injury to provide standing to the state of Massachusets?  In his majority opinion Justice Scalia relies heavily on his opinion in Lujan v. Defenders of Wildlife, but he never once cites the Court's more recent standing decision in Massachusetts v. EPA.  Justice Kennedy, who cast the crucial fifth vote to uphold standing in Massachusetts v. EPA joins Justice Scalia as the deciding fifth vote to deny standing to the plaintiffs in Summers. In his concurring opinion, Justice Kennedy describes the Summers plaintiffs as having suffered "deprivation of a procedural right without some concrete interest that is affected by the deprivation."  Is Justice Kennedy correct?  Is he being consistent with his vote for standing in Massachusetts v. EPA?

2. The Court's decision indicates that the Court is much more closely split on standing issues than it was when it decided Laidlaw by a 7-2 margin.  Chief Justice Roberts and Justice Alito take a far more restrictive view of standing than Chief Justice Rehnquist and Justice O'Connor did in Laidlaw, as indicated by their opposition to standing in Massachusetts v. EPA.  Justice Kennedy's vote thus becomes decisive in most controversies over standing.  With Justice Souter retiring, the balance could tip against environmental standing if his successor takes a more restrictive view.

3. The Summers decision indicates that it will continue to be difficult for environmental groups to establish standing to challenge forest management decisions because of the majority's demand that they use or visit specific parcels affected by the illegal activity they allege.  In his dissent Justice Breyer argues that this is unrealistic. "To know, virtually for certain, that snow will fall in New England this winter is not to know the name of each particular town where it is bound to arrive."

4. Justice Scalia's approach to standing reflects the continuing influence of private common law models of injury that the Court had decisively rejected in Laidlaw and narrowly rejected in Massachusetts v. EPA. See Robert V. Percival, Massachusetts v. EPA: Escaping the Common Law's Growing Shadow, 2007 Sup. Ct. Rev, 111 (2008). Professor Jonathan Nash proposes that courts should recognized a new model of "precautionary-based standing" that would grant standing to plaintiffs based on allegations of harm that could be catastrophic and irreversible, but whose occurrence is subject to great uncertainty. Jonathan Nash, Standing and the Precautionary Principle, 108 Col. L. Rev. 494 (2008).

Government Preclusion to Citizen Suits
p. 1026 (5th edition): Section 309(g)(6)(B) of the Clean Water Act provides that an administrative enforcement action does not bar a citizen suit if the 60-day notice of intent to sue is given prior to commencement of the administrative action and the citizen suit is filed before the 120th day after the notice is given.  In Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3d 986 (11th Cir. 2008), the Eleventh Circuit held that this applies to both federal and state administrative enforcement actions.  Thus, it rejected a claim that a citizen suit was barred when a state administrative enforcement action commenced 65 days after the notice of intent to sue and the citizen suit was filed 72 days after the notice. However, in Environmental Conservation Organization v. City of Dallas, 529 F.3d 519 (5th Cir. 2008), the Fifth Circuit concluded that even a properly filed citizen suit can be dismissed if it becomes moot due to subsequent enforcement action that adequately addressed the same violations.

The Eleventh Amendment and Citizen Suits Against States
p. 1033 (5th edition): Does the Eleventh Amendment bar damages claims against states for regulatory takings?  In Seven Up Pete Venture v. Schweitzer, 523 F.3d 948 (9th Cir. 2008), the Ninth Circuit affirmed a federal district court's dismissal of a reverse condemnation action brought against state officials on the ground that it was barred by the Eleventh Amendment. The plaintiffs sought compensation for a regulatory taking of their mining leases after the state of Montana banned certain mining practices.  While it rejected application of the Ex Parte Young exception on the ground that a reverse condemnation action is not prospective in character, the court emphasized that plaintiffs should be able to pursue a remedy in state court because the state cannot "wholly deny" a remedy for a taking in violation of the federal constitution. 

Enforcement Against Federal Facilities -- DOD Facilities
p. 1034 (5th edition): In December 2008 the U.S. Department of Justice's Office of Legal Counsel (OLC) issued an opinion upholding EPA's authority to issue cleanup orders to Department of Defense  (DOD) facilities.  Frustrated by DOD's failure to remediate contamination at DOD sites listed on the Superfund National Priorities List, EPA issued four facility-wide "imminent and substantial endangerment" cleanup orders under RCRA §7003 and §1431 of the Safe Drinking Water Act.  The state of Maryland filed a RCRA §7002(a)(1) notice of intent to sue to enforce one of these orders with respect to DOD's Fort Meade facility.  DOD then sought an opinion from the Justice Department on the legality of EPA's actions.  In an opinion issued on December 1, 2008, OLC concluded that EPA had acted properly and that it had the authority to issue the orders under RCRA and the SDWA even for sites covered by federal facility agreements (FFAs) under CERCLA §120(e)(4). Steven G. Bradbury, Re: Issuance of Imminent and Substantial Endangerment Orders at Department of Defense Facilities, Dec. 1, 2008.  OLC concluded that the orders did not have to seek abatement of a specific threat, but instead could also seek implementation of facility-wide cleanups.  OLC upheld EPA's ability to insist on inclusion of terms in a FFA that go beyond the requirements of CERCLA §120(e)(4), but it noted that DOD is not necessarily required to agree to all extra-statutory terms demanded by EPA.  OLC concluded that EPA may require DOD to adhere to the same terms applicable to non-federal facilities under CERCLA.  OLC also concluded that EPA may address in its cleanup orders releases beyond those identified in the initial NPL listing.