Overturning Abbott Labs — Gradually?

The Court's decision in Summers v. Earth Island Institute was released this morning. To no one's great surprise, the decision was 5-4, reversing the Ninth Circuit's decision. In the case, a group of environmental nonprofits challenged the Forest Service's "salvage logging" rules (rules that greased the skids, so to speak, for timber sales following fires throughout the National Forest System). At issue was the quality and quantity of "injury" the plaintiffs needed to sustain Article III standing. What they'd argued is that their many members use the NFS's 155+ units, which is spread across 190 million acres, quite frequently. Because of the unpredictability of fire and future salvage logging contracts, they could not allege that any particular place would be affected by the rule. The majority holds that that is fatal for Article III purposes.

This is, of course, a perennial dispute when it comes to challenging rules as such — an issue with special salience for environmental plaintiffs.

Justice Scalia's opinion (which garners the votes of Roberts, Alito, and Thomas, along with a very short concurrence from AMK purporting to join the Scalia opinion "in full") goes a good distance toward making so-called "pre-enforcement" review of rulemakings as such much harder than the Court did in the famous Abbott Laboratories trilogy of 1967. The Summers opinion picks-up where the Ohio Forestry Association opinion left off. Where will it lead, though?

Posted by Jamie Colburn