Notice & Comment

Judicial Review/Environmental Law: Ninth Circuit Dismisses Wilderness Society Challenge to ARA Regulations, by Jonathan Rusch

On September 22, the U.S. Court of Appeals for the Ninth Circuit, in Wilderness Society v. Rey, No. 06-35565, dismissed as nonjusticiable a challenge by The Wilderness Society and other environmental groups (TWS) to revised regulations by the U.S. Forest Service under the Forest Service Decisionmaking and Appeals Reform Act (“ARA”). In 2003, according to the Court, “the Forest Service revised the regulations implementing the ARA to significantly limit the scope and availability of notice, comment,and appeals procedures.” The district court had granted TWS declaratory and injunctive relief on the basis that the revised regulations were inconsistent with the ARA.

Subsequently, the U.S. Supreme Court held, in Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149 (2009), that “[t]o 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.” As the Ninth Circuit noted in Wilderness Society, “[t]he Court [in Summers] reiterated that where the regulations being challenged do not require or forbid any action on the part of the respondents, standing is substantially more difficult to establish. Id. Earth Island lacked standing to challenge [the relevant regulations], because it failed to identify an “application of the invalidated regulation that threaten[ed] imminent and concrete harm to the interests of [its] members.” Id. at 1150. In this case, the Ninth Circuit declined to find that either procedural or informational injury was sufficient to confer standing on the plaintiffs.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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