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On Wednesday, October 8, the Supreme Court heard oral argument in Summers v. Earth Island Institute. In this case, the Supreme Court considers the justiciability of challenges to certain Forest Service regulations authorizing logging in areas damaged by fire without various procedures Congress had generally specified for forest management. The Earth Island Institute and other environmental groups brought a facial and as applied challenge to the regulations. The as applied challenge was settled, but the environmental plaintiffs maintained their facial challenge and obtained a nationwide injunction against application of the rules. The Ninth Circuit upheld the injunction, and the Supreme Court now considers whether the facial challenge presents a proper subject for judicial review, whether the respondents have established standing, whether the subject remains ripe, and whether the nationwide injunction was proper. Kirkland & Ellis partner Jeffrey Clark discusses the case.
Oral Argument - October 8, 2008: