Supreme Court limits standing of environmentalists to challenge regulations

[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.

 

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