Supreme Court limits standing of environmentalists to challenge regulations

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Supreme Court limits standing of environmentalists to challenge regulations

Jaclyn Belczyk | JURIST Executive Editor

March 3, 2009 10:14:00 am

[JURIST] The US Supreme Court [official website; JURIST news archive] decided two cases Tuesday. In Summers v. Earth Island Institute [Cornell LII backgrounder; JURIST report] the Court ruled [opinion, PDF] 5-4 that a group of environmentalists cannot sue to have a Forest Service regulation struck down, as they are limited only to suing to end programs enacted under that regulation. Writing for the majority, Justice Antonin Scalia found that the environmental groups lacked standing:

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."

Justice Anthony Kennedy filed a concurring opinion. Justice Stephen Breyer filed a dissenting opinion, in which Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg joined, finding the Court's ruling "counter-intuitive". The Court affirmed in part and reversed in part the decision [opinion, PDF] of the US Court of Appeals for the Ninth Circuit, which held that the environmentalists could sue against the regulation itself.

In Negusie v. Holder [Cornell LII backgrounder; JURIST report] the Court ruled [opinion, PDF] 8-1 that the so-called "persecutor bar" in the Immigration and Naturalization Act (INA) [text], which prohibits the attorney general or secretary of Homeland Security from granting asylum or stay of deportation to any person who "ordered, incited, assisted, or otherwise participated in the persecution" of any person on account of "race, religion, nationality, membership in a particular social group, or political opinion," does not apply to a person who committed such an act due to "credible threats of death or serious bodily harm." The case concerned Daniel Girmai Negusie, a citizen of Eritrea [JURIST news archive], who was forcibly conscripted into the Eritrean army during its ongoing war with Ethiopia [JURIST news archive], imprisoned, and forced to work as an armed prison guard at a facility where inmates were tortured and mistreated. He eventually escaped and made his way to the US, where he applied for asylum. An immigration judge denied his asylum application on the grounds that his service as a prison guard made him ineligible for asylum protection under the INA, and the Board of Immigration Appeals (BIA) [official website] affirmed. Kennedy wrote for the Court:

The question here is whether an alien who was compelled to assist in persecution can be eligible for asylum or withholding of removal. We conclude that the BIA misapplied our precedent in Fedorenko as mandating that an alien’s motivation and intent are irrelevant to the issue whether an alien assisted in persecution. The agency must confront the same question free of this mistaken legal premise.

Scalia filed a concurring opinion, in which Justice Samuel Alito joined. Justice Stevens filed an opinion concurring in part and dissenting in part, in which Justice John Breyer joined. Justice Clarence Thomas filed a dissenting opinion. The Court's ruling reversed the decision [opinion, PDF] of the US Court of Appeals for the Fifth Circuit, which upheld the BIA's denial of asylum and remanded the case for further consideration.

Martin Luther King Jr. wrote his Letter from Birmingham Jail

On April 16, 1963, an incarcerated Martin Luther King, Jr. (arrested for demonstrating in defiance of a court order) wrote his Letter from Birmingham Jail in response to a published statement by eight fellow clergymen from Alabama.

Part of the letter read: We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. Read the full text of the Letter.