September 8, 2008

Summers v. Earth Island Institute
Closing the Door on Facial Challenges to Agency Action?

Among the first cases the Supreme Court heard during the October 2008 term was Summers v. Earth Island Institute, a little-noticed case that raised significant administrative law questions with ramifications that go far beyond the environmental field. Summers involved a facial challenge to U.S. Forest Service regulations that limit notice, public comment, and appeals with respect to certain agency actions. The case posed a range of justiciability issues on standing, ripeness, and mootness, and also raised a question about the permissible scope of injunctive relief. With widespread implications for judicial review of agency action, the case was closely watched by practitioners and scholars alike.

A panel of experts representing some of the major players in this case—including Scott Nelson of Public Citizen for respondents and the authors of amicus briefs submitted by Pacific Legal Foundation and a prominent group of law professors joined ELI for a discussion. The experts discussed the events giving rise to this case, the nature of petitioners’ challenge, and what the case may portend for the future of environmental and administrative law.

Moderator:
Lisa Goldman, Staff Attorney, Environmental Law Institute

Panelists:
Amanda C. Leiter, Associate Professor, Catholic University of America Columbus School of Law
Scott Nelson, Staff Attorney, Public Citizen Litigation Group
Damien M. Schiff, Staff Attorney, Pacific Legal Foundation