Academic

Mank on Summers v. Earth Island Institute & Standing

By Lawrence Solum

Bradford C. Mank (University of Cincinnati - College of Law) has posted Summers V. Earth Island Institute: Its Implications for Future Standing Decisions (Environmental Law Reporter, Vol. 40, p. 10958, 2010) on SSRN. Here is the abstract:

In Summers v. Earth Island Institute, the U .S . Supreme Court in a 5-4 decision written by Justice Antonin Scalia rejected the concept of organizational standing based upon the statistical probability that some members of a plaintiff organization will likely be harmed in the near future by the defendant?s future actions. The Court held that the plaintiff organizations failed to establish that they would suffer an "imminent" injury necessary for standing to sue in federal courts because they could not prove the specific places and times when their members would be harmed in the future by the defendant government?s allegedly illegal policy of selling fire-damaged timber without public notice and comment. By contrast, Justice Stephen Breyer?s dissenting opinion in Summers would have applied a "realistic threat" test to determine if some members of the organization were likely to be harmed in the future by the defendant government?s actions even if it were impossible to determine when and where those members would be harmed by those actions.

The Summers decision also arguably placed a higher standing burden on plaintiffs who challenge the government?s alleged violation of a mandatory procedural requirement. In footnote seven of Lujan v. Defenders of Wildlife (Defenders), Justice Scalia?s majority opinion stated that plaintiffs who may suffer a concrete injury resulting from a procedural violation by the government are entitled to a more relaxed application of both the imminent injury and the redressability standing requirements to sue in federal courts. Seventeen years after the Defenders decision, Justice Scalia?s Summers majority opinion did not overrule the analysis in Defenders? footnote seven, but his opinion arguably suggested that the Court was tightening the circumstances where it would relax the imminence standing requirement in cases where a plaintiff organization alleges that its members will be harmed in the future by the government?s alleged violation of procedural requirements, but the plaintiff can provide no specific allegations about where and when those violations may occur.

The lower courts are just beginning to grapple with the standing implications of Summers . This Article first reexamines the U.S. Court of Appeals for the District of Columbia Circuit?s 2006 decision in Natural Resources Defense Council v. EPA (NRDC II), which was the strongest lower court decision before Summers upholding substantive probabilistic standing. Because the plaintiffs? evidence was of an inherently statistical and probabilistic nature, NRDC II is arguably distinguishable from Summers, a case where the probabilistic claims by the plaintiffs were relatively weak and where a future suit by the plaintiffs might present better evidence involving an actual injury.

Full post as published by Legal Theory Blog on February 12, 2011 (boomark / email).