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 . . . .‖
―To the contrary, a thr eat of future harm may be realistic
even where the plaintiff cannot specify precise times, dates,
and GPS coordinates.‖
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
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.
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.
The district court granted a preliminary injunction
applicable nationwide, and the Court of Appeals for the Ninth
The Supreme Court of the United States,
Copyright 2011, by MARGARET MCDONALD.
. 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,
. Id. at 1156 (Breyer, J., dissenting).
. Id. at 1147 (majority opinion).
. 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).
. Id. at 1147 (majority opinion).
. 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.
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.
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.
Although the dissent offers a
more equitable test that requires a ―realistic threat‖ of injury, this
test demands too little from potential plaintiffs.
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
. Summers, 129 S. Ct. at 1153.
. Id. at 1151 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 564
. 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.
. 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
Litigation concerning standing of environmental groups did not
originate with Summers.
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
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
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.
In other words, the
plaintiff must have a cause of action or a legal right to bring a
When determining whether a plaintiff can establish standing
and proceed with a suit, courts today consider three factors: (1) that
. 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).
. 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.
. Baker v. Carr, 369 U.S. 186, 204 (1962).
. Cass R. Sunstein, What’s Standing After Lujan? Of Citizens, ―Injuries,‖
and Article III, 91 MICH. L. REV. 163, 170 (1992).