Summers v. Earth Island Institute: Overhauling the Injury-in-Fact Test for Standing to Sue

• Author: Margaret McDonald
• Pages: 1053-1089

Summers v. Earth Island Institute: Overhauling the

Injury-in-Fact Test for Standing to Sue

―To seek injunctive relief, a plaintiff must show that he is

under threat of suffering „injury in fact’ that is concrete

and particularized; the threat must be actual and imminent,

not conjectural or hypothetical . . . .‖

1

―To the contrary, a thr eat of future harm may be realistic

even where the plaintiff cannot specify precise times, dates,

and GPS coordinates.‖

2

I. INTRODUCTION

Following the stringent standing test applied by the United

States Supreme Court in Summers v. Earth Island Institute,

environmental organizations will never meet the standing

requirements necessary to challenge regulations that prevent public

notice, comment, and appeal of United States Forest Service

projects.

3

Without an available plaintiff to challenge these projects,

the Forest Service will continue to cut down trees throughout the

national forests without the threat of public protest.

4

The standing

test applied by the Summers majority must be replaced with a new

test that provides a potential plaintiff with an actual opportunity to

establish standing to challenge the Forest Service‘s ability to

negatively impact the environment without public interference.

Alleging aesthetic and procedural injuries, the plaintiff

organizations in Summers challenged a sale of timber from a

national forest because the United States Forest Service refused to

provide notice and an opportunity for public comment and appeal

before the sale.

5

The district court granted a preliminary injunction

applicable nationwide, and the Court of Appeals for the Ninth

Circuit affirmed.

6

The Supreme Court of the United States,

Copyright 2011, by MARGARET MCDONALD.

1

. Summers v. Earth Island Inst., 129 S. Ct. 1142, 11 49 (2009) (citing

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (T OC), Inc., 528 U.S. 167,

180–81 (2000)).

2

. Id. at 1156 (Breyer, J., dissenting).

3

. Id. at 1147 (majority opinion).

4

. The United States Forest Service admits that it has planned ―thousands‖

of projects exempted from notice, comment, and appeal for the future. Id. at

1157 (Breyer, J., dissenting).

5

. Id. at 1147 (majority opinion).

6

. Earth Island Inst. v. Pengilly, 376 F. Supp. 2d 994, 999 (E.D. Cal.

2005), aff’d sub nom. Earth Island In st. v. Ruthenbeck, 459 F.3d 954 (9th Cir.

1054 LOUISIANA LAW REVIEW [Vol. 71

however, declined to rule on the merits.

7

Instead, the Court held

that the environmental organizations lacked standing to sue the

Forest Service because the organizations failed to prove an

―imminent‖ threat of injury.

8

The Court reached the wrong result in Summers. This decision

highlights an inconsistency in how the Supreme Court determines

injury in fact in environmental standing cases. The demanding

imminent-threat test applied by the Summers majority prevents

environmental organizations like those in Summers from

demonstrating the injury-in-fact aspect of standing under Article

III of the United States Constitution.

9

Although the dissent offers a

more equitable test that requires a ―realistic threat‖ of injury, this

test demands too little from potential plaintiffs.

10

Summers

demonstrates the need to modify the analysis applied to the injury-

in-fact prong of the three-part standing test for both aesthetic

injuries and procedural injuries. New injury-in-fact tests will

provide environmental organizations with broader opportunities to

establish standing to challenge procedural regulations and

proposed projects that negatively impact the environment.

This Note argues that courts should adopt new analyses for

determining injury in fact, especially when the potential plaintiff

alleges a procedural injury. Part II provides a background on

Article III standing and United States Supreme Court jurisprudence

that discusses standing in the context of environmental cases. Part

III describes the Summers litigation in detail, including Justice

Scalia‘s majority opinion, Justice Kennedy‘s concurrence, and

Justice Breyer‘s dissenting opinion. Part IV analyzes the factors

that the majority and dissent used to determine whether a plaintiff

has standing to sue. More specifically, Part IV focuses on the

injury-in-fact requirement of standing because the majority and

dissent employ conflicting tests when analyzing this factor. It also

2006), aff’d in part, rev’d in part, 490 F.3d 687 ( 9th Cir. 2007), aff’d in part,

rev’d in part sub nom. Summers v. Earth Island Inst., 129 S. Ct. 1142 (2009);

Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 690–91 (9th Cir. 2007), aff’d in

part, rev’d in part sub nom. Summers v. Earth Island Inst., 129 S. Ct. 1142

(2009).

7

. Summers, 129 S. Ct. at 1153.

8

. Id. at 1151 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 564

(1992)).

9

. Id. at 1149 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Ser vs.

(TOC), Inc., 528 U.S. 167, 180–81 (2000)). Courts apply a three-part test in

standing cases: injury in fact, causation, and redressability. Id. For a discussion

of the three-part standing test, see infra P art II.A.

10

. Summers, 129 S. Ct. at 1156 (Breyer, J., dissenting) (citing Blum v.

Yaretsky, 457 U.S. 991, 1000 (1982)).

2011] NOTE 1055

emphasizes the problems with applying the same test to both

aesthetic and procedural standing. In response to these problems,

Part IV proposes several new tests to replace the current injury-in-

fact test applied by the Summers majority. Part V of this Note

concludes that courts should adopt a modified application of the

injury-in-fact tests for aesthetic injuries and a due process-like

analysis for procedural injuries. Part V further concludes that under

these proposed tests, plaintiffs like those in Summers will have an

actual opportunity to establish standing in order to challenge

aesthetic and procedural injuries in environmental cases.

II. A HISTORY OF ARTICLE III STANDING AND ITS ROLE IN

ENVIRONMENTAL JURISPRUDENCE

Litigation concerning standing of environmental groups did not

originate with Summers.

11

In fact, environmental case law

represents one of the only areas of law in which the courts question

whether a plaintiff has standing to sue. In most cases, the courts

never raise the issue of standing because the plaintiffs demonstrate

obvious injuries.

12

The development of Article III standing and

environmentally based jurisprudence preceding Summers set a

foundation for evaluating the Court‘s analysis of standing in the

case.

A. Article III and Standing

To establish standing to sue, a plaintiff must ―allege[] such a

personal stake in the outcome of the controversy‖ that a court has

jurisdiction to afford the plaintiff a remedy.

13

In other words, the

plaintiff must have a cause of action or a legal right to bring a

suit.

14

When determining whether a plaintiff can establish standing

and proceed with a suit, courts today consider three factors: (1) that

11

. See Massachusetts v. EPA, 549 U.S. 497 (2007); Friends of the Ea rth,

528 U.S. 167; Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83 (1998);

Defenders of Wildlife, 504 U.S. 555; Lujan v. Nat‘l Wildlife Fed‘n, 497 U.S.

871 (1990); United States v. Students Challenging Regulatory Agenc y

Procedures, 412 U.S. 669 (1973); Sierra Club v. Morton, 405 U.S. 727 (1972).

12

. See Emily Longfellow, Friends of the Eart h v. Laidlaw E nvironmental

Services: A New Look a t Environmental Standing, 24 ENVIRONS 3, 14 (2000).

Financial and physical injuries are easily demonstrated injuries in fact. See id. at

15. Emotional and aesthetic injuries are more difficult to demonstrate. See id.

For a discussion of the two types of injuries relevant to Summers—aesthetic and

procedural injuries—see infra Par t II.A.

13

. Baker v. Carr, 369 U.S. 186, 204 (1962).

14

. Cass R. Sunstein, What’s Standing After Lujan? Of Citizens, ―Injuries,‖

and Article III, 91 MICH. L. REV. 163, 170 (1992).