Summers v. Earth Island Institute rejects probabilistic standing, but a "realistic threat" of harm is a better standing test.

• Author: Mank, Bradford

1. INTRODUCTION II. STANDING DOCTRINE A. Constitutional Standing B. Relaxed Standing in Procedural Cases C. Imminent Risks in Nonprocedural Cases III. Laidlaw W. A. Majority Decision B. Justice Scalia's Dissenting Opinion IV. Summers A. Justice Scalia's Majority Opinion B. Justice Kennedy's Concurring Opinion C. Justice Breyer's Dissenting Opinion D. Analysis V. EASY CASES A. Lower Court Decisions Relying on Laidlaw to Recognize Probabilistic Standing B. Cases Similar to Summers to Summers 1. Public Citizen I 2. Public Citizen II 3. Comparing Summers with Public Citizen C. Environmental Versus Nonenvironmental Injuries VI. A HARD CASE: NATURAL RESOURCES DEFENSE COUNCIL V. A. Natural Resources Defense Council v. EPA, I and I 1. NRDC I 2. NRDC II B. Covington v. Jefferson County 1. Majority Opinion 2. Judge Gould's Concurring Opinion C. Applying Laidlaw and Summers to NRDC II VII. THE SUPREME COURT SHOULD OVERRULE SUMMERS AND ADOPT JUSTICE BREYER'S REALISTIC THREAT TEST VIII. CONCLUSION I. INTRODUCTION

   To file suit in Article III federal courts, a plaintiff must demonstrate "standing" by establishing that the defendant's actions have caused an actual or imminent injury, and not merely a speculative or hypothetical injury that might occur someday. (1) In the Supreme Court's 2009 decision in Summers v.

   Earth Island Institute, (2) Justice Antonin Scalia's majority opinion rejected the concept of organizational standing based upon the statistical probability (3) that some of an organization's members will likely be harmed in the near future by a defendant's allegedly illegal actions. (4) By contrast, Justice Stephen Breyer's dissenting opinion proposed a "realistic threat" test for determining when an injury is sufficient for standing that would consider whether it is probable that at least one member of an organization will be harmed in the near future by a defendant's actions. (5) Justice Scalia argued that the "dissent would have us replace the requirement of imminent harm, which it acknowledges our cases establish, with the requirement of a realistic threat that reoccurrence of the challenged activity would cause [the plaintiff] harm in the reasonably near future." (6) The Court held that the plaintiff organizations failed to establish that they would suffer an "imminent" injury sufficient for standing because they could not prove where and when their specific members would be harmed in the future by the government's allegedly illegal policy of selling fire-damaged timber without public notice and comment. (7)

   Although Justice Scalia's decision in Summers might appear to close the door to organizational standing based upon a statistical probability of harm, the Court's earlier decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (Laidlaw) (8) implicitly accepted probabilistic standing in some circumstances. (9) Despite the plaintiffs' failure to prove that the defendant's mercury discharges caused harm to the environment or human health, the Laidlaw decision concluded that the plaintiffs' affidavits demonstrating that they had avoided recreational use of a river because of their "reasonable concerns" about the mercury's impact on their health was sufficient for standing. (10) Justice Scalia's dissenting opinion in that case argued that plaintiffs usually should have to demonstrate injury both to the environment and themselves to have standing. (11) Implicitly, Laidlaw's reasonable concerns test is based upon an estimate of the statistical probability of future harm. (12)

   The Summers decision's blanket rejection of probabilistic standing is in considerable tension with Laidlaw's reasonable concerns test, which Summers did not question. (13) In fact, the plaintiffs in Summers had far stronger evidence that they would be harmed by the defendant's actions than the plaintiffs in Laidlaw. (14) It is not clear that the plaintiffs in Laidlaw could meet the realistic threat test .proposed by Justice Breyer in his dissenting opinion in Summers. (15) If the Supreme Court's current standing jurisprudence would find no standing in Summers, but standing in the far weaker Laidlaw decision, then there is a problem with the Court's standing jurisprudence. (16)

   In the short term, courts are likely to distinguish Summers and Laidlaw. (17) The Laidlaw decision involved plaintiffs who avoided recreational activities in a river because of the defendant's illegal discharge of a toxic pollutant into the river. (18) In cases factually similar to Laidlaw, courts are likely to rely on Laidlaw and ignore any doubts about the severity of the harm. (19) On the other hand, in most cases in which all of the alleged government harm will occur in the future, Summers precludes probabilistic standing. (20)

   There remain some difficult cases in which it is not obvious whether Summers or Laidlaw should control. For example, if the government allows the release of ozone-destroying chemicals (ODCs) that are likely to cause damage to the Earth's ozone layer, and that damage will allow more dangerous ultraviolet (UV) light that will cause skin cancer in the future, does Summers's rejection of probabilistic standing preclude standing or does Laidlaw's reasonable concerns test apply? (21) In its 2006 decision Natural Resources Defense Council v. Environmental Protection Agency (NRDC II), (22) the United States Court of Appeals for the District of Columbia Circuit held that the Natural Resources Defense Council (NRDC) had standing because two to four of their approximately 500,000 members would likely get skin cancer from the government's exemptions for methyl bromide, a chemical that destroys ozone. (23) The NRDC 1I decision is the best example of a court granting standing to an organization based upon the statistical probability that some of its members will be harmed in the future. (24) After Summers, the Supreme Court might reject standing in a case similar to NRDC II because it is impossible to prove which specific members of NRDC will contract skin cancer because of increased UV radiation. (25) On the other hand, the statistical evidence predicting future harm was more impressive in NRDC II than in Laidlaw, where the Court found that the plaintiffs had standing because of their reasonable concerns about mercury pollution, even without proof of actual harm to anyone. (26) If neither the Summers nor the Laidlaw decision would recognize standing in the NRDC II decision, then it is time for the Court to revise its standing test to determine when there is a realistic threat of harm. (27)

   In Summers, Justice Scalia declared, "Standing, we have said, is not an ingenious academic exercise in the conceivable ... [but] requires ... a factual showing of perceptible harm." (28) The tension between the reasoning in Summers and Laidlaw is an invitation for ingenious pleading. (29) For example, a clever lawyer might fit the facts in NRDC II within the Laidlaw rubric by having some plaintiffs file affidavits stating that they avoid sunbathing, swimming, or other recreational activities because of their reasonable concerns about avoiding skin cancer, even though the essential issue in the case is about future harm to unknown plaintiffs. (30)

   The realistic threat test in Justice Breyer's dissenting opinion in Summers offers a better approach to standing than either Summers's unrealistic demand that plaintiffs precisely predict the future or Laidlaw's focus on whether a plaintiff avoided recreational activities rather than whether the defendant's activities caused actual harm. (31) There was a more realistic threat of harm in Summers than Laidlaw, yet the Court found standing in the latter case but not the former case. (32) The Court's current approach to standing for organizational plaintiffs and probabilistic risks is seriously flawed and the realistic threat test offers a more rational approach to assess which injuries are sufficiently serious for standing in Article III federal courts. (33)

   Furthermore, a realistic threat test for standing is more consistent with congressional intent in enacting several citizen suit statutes that are involved in the vast majority of cases in which constitutional standing is at issue. (34) Some citizen suit statutes, especially in the area of environmental law, allow "any person" to sue if the government underenforces the law. (35) Although congressional intent is not completely binding on the courts in cases involving constitutional standing, Justice Anthony Kennedy and Justice Breyer have each explained that courts should give significant import to Congress's definition of what is a "concrete injury" for standing purposes. (36) Part II summarizes standing doctrine. Part HI explains Laidlaw. Part IV explicates Summers. Part V addresses the easy cases where Summers and Laidlaw can be neatly distinguished. Part VI examines the NRDC II decision in light of Summers and Laidlaw. Part VII argues that the Court should overrule Summers and instead adopt Justice Breyer's realistic threat test in his dissenting opinion.

2. STANDING DOCTRINE

   1. Constitutional Standing

      Although the Constitution does not explicitly require that a plaintiff have standing to file suit in federal courts, since 1944 the Supreme Court has inferred from the Constitution's Article IN limitation of judicial decisions to "cases" and to "controversies" that federal courts must utilize standing requirements to guarantee that the plaintiff has a genuine interest and stake in a case. (37) Litigants in federal Article III courts must meet certain standing requirements to bring a suit. (38) The federal courts have jurisdiction over a case only if at least one plaintiff can prove that he or she has standing for each form of relief sought. (39) The standing doctrine resolves whether a party to a lawsuit is a proper party to sue and does not decide whether the asserted claim is appropriate. (40) A federal court must dismiss a case...