Summers v. Earth Island Institute: Its Implications for Future Standing Decisions

Date01 October 2010
In Summers v. Earth Island Institute,1 the U.S. Supreme
Court in a 5-4 decision written by Justice Antonin Sca-
lia rejected the concept of organizational standing based
upon the statistical probability that some members of a plain-
ti organiz ation will likely be harmed in the near future by
the defendant’s future actions.2e Court held that the plain-
ti organizations failed to establish that they would suer an
“imminent” injury necessary for standing to sue in federal
courts because they could not prove the specic places and
times when their members would be harmed in the future by
the defendant government’s allegedly illegal policy of selling
re-damaged timber without public notice and comment.3
By contrast, Justice Stephen Breyer’s dissenting opinion in
Summers would have applied a “realistic threat” test to deter-
mine if some members of the organization were likely to be
harmed in the futu re by the defendant government’s actions
even if it were impossible to determine when and where those
members would be harmed by those actions.4
Additionally, the Summers decision a rguably placed a
higher standing burden on plaintis who challenge the
government’s alleged violation of a mandatory procedural
requirement. In footnote seven of Lujan v. Defenders of Wild-
life (Defenders),5 Justice Scalia’s majority opinion stated that
plaintis who may suer a concrete injury resu lting from a
procedural violation by the government are entitled to a more
1. 129 S. Ct. 1142, 39 ELR 20047 (2009).
2. Id. at 1151-53 (majority opinion). Justice Antonin Scalia’s majority opinion
was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clar-
ence omas, and Samuel Alito. Id. at 1146. Justice Stephen Breyer’s dissent-
ing opinion was joined by Justices John Paul Stevens, David Souter, and Ruth
Bader Ginsburg. Id.
3. Id. at 1150-53.
4. Id. at 1155-58 (Breyer, J., dissenting).
5. 504 U.S. 555, 22 ELR 20913 (1992).
relaxed application of both the imminent injury and the
redressability standing requirements to sue in federal courts.6
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 plainti organization alleges that its members will be
harmed in the future by the government’s alleged violation
of procedural requirements, but the plainti can provide no
specic allegations about where and when those violations
may occur.7
e lower courts are just beginning to grapple with the
standing implications of Summers. is Article rst reexam-
ines the U.S. Court of Appeals for the District of Columbia
(D.C.) Circuit’s 2006 decision in Natural Resources Defense
Council v. EPA (NRDC II),8 which was the strongest lower
court decision before Summers upholding substantive proba-
bilistic standing. Because the plaintis’ evidence was of an
inherently statistical and probabilistic nature, NRDC II is
arguably distinguishable from Summers, a ca se where the
probabilistic claims by the plaintis were relatively weak and
where a future suit by the plaintis might present better evi-
dence involving an actual injury.9
ere is this much truth to the assertion that “procedural rights” are
special: e person who has been accorded a procedural right to pro-
tect his concrete interests can assert that right without meeting all the
normal standards for redressability and immediacy. us, under our
case law, one living adjacent to the site for proposed construction of a
federally licensed dam has standing to challenge the licensing agency’s
failure to prepare an environmental impact statement, even though he
cannot establish with any certainty that the statement will cause the
license to be withheld or altered, and even though the dam will not be
completed for many years.
Id. at 572 n.7 (1992); for more discussion, see Bradford C. Mank, Global
Warming: Is Injury to All Injury to None?, 35 E. L. 1, 35-36 (2005) [herein-
after Mank, Global Warming], and Bradford Mank, Should States Have Greater
Standing Rights an Ordinary Citizens?: Massachusetts v. EPAs New Standing
Test for States, 49 W.  M L. R. 1701, 1716 (2008) [hereinafter Mank,
States Standing].
7. See infra Part II.A.
8. 464 F.3d 1, 6-7, 36 ELR 20181 (D.C. Cir. 2006); see infra Part III.
9. See infra Part III.
Author’s Note: I thank Michael Solimine for his comments. All errors
or omissions are my responsibility. Sections of this Article are based in
part on my previous article, Bradford Mank, Summers v. Earth Island
Institute Rejects Probabilistic Standing, But a “Realistic reat” of
Harm Is a Better Standing Test, 40 E. L. 89 (2010). However,
my interpretation of the impact of the Summers opinion on the validity
of the NRDC II decision has changed somewhat.
Summers v. Earth Island
Institute: Its Implications for
Future Standing Decisions
by Bradford C. Mank
Bradford C. Mank is the James Helmer Jr. Professor of Law, University of Cincinnati College of Law.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.
10-2010 NEWS & ANALYSIS 40 ELR 10959
Summers’ restrictive approach to standing is likely to have
its greatest impact in the U.S. Court of Appeals for the Ninth
Circuit, which has long applied a more liberal approach
in procedural standing cases than the D.C. Circuit.10 e
Ninth Circuit’s approach to procedural standing is impor-
tant because 70% of all federal public lands are located in
that circuit, and, as a result, there are many procedural chal-
lenges to federal land management decisions in that circuit.11
Two federal district court decisions in the Ninth Circuit in
2009 disagreed as to what extent Summers had implicitly
overruled t he Ninth Circuit’s standing precedent in proce-
dural rights cases. One district court concluded that Sum-
mers had implicitly overruled the Ninth Circuit’s recognition
of procedural standing even when harm is not imminent,
but it is not clear that the cour t needed to address Summers,
because the evidence that t he plainti presented in that case
was so weak that it wa s arguably insucient to meet even
the Ninth Circuit’s liberal standing test in procedural rights
cases.12 Another district court, however, concluded that Sum-
mers was not “clearly irreconcilable” with the Ninth Circuit’s
standing decisions a nd t hat the Ninth Circuit’s procedura l
standing cases involving general procedural challenges or
requests for information relating to national or regional
regulations that did not depend on site-specic issues could
be distinguished from Summers, which required plaintis to
address site-specic impacts.13 While Summers is an impor-
tant standing case, it may be possible for lower courts in
some cases to distinguish its facts where a plainti ’s case is
either inherently statistical in nature or involves a procedural
challenge to national or regional regulations or environmen-
tal assessments.
I. A Brief Introduction to Procedural
Rights Standing
A. The Three Part-Constitutional Standing Test
Article III of the U.S. Constitution does not specically
require that a plainti ling suit in federal court demonstrate
“standing” to sue, but it does limit the role of the federal judi-
ciary to “cases” and “controversies.”14 e Supreme Court
has interpreted Article III to bar suits in federal courts seek-
ing advisory opinions regarding hypothetica l disputes that
might occur someday. e Cour t in Defenders summarized
prior cases and rened the Court’s three-part standing test
10. See infra Parts I.B and IV.A.
11. Carl Tobias, Natural Resources and the Ninth Circuit Split, 28 E. L. 411,
412 (1998) (“[A]n astounding seventy percent of the federal public lands in the
entire United States are within the Ninth Circuit’s purview.”); see also Adrienne
Smith, Standing and the National Environmental Policy Act: Where Substance,
Procedure, and Information Collide, 85 B.U. L. R. 633, 643 (2005) (“e
D.C. Circuit and the Ninth Circuit handle the majority of NEPA cases....”).
12. See infra Part IV.B.
13. See infra Part IV.C.
14. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 22 ELR 20913 (1992).
requiring a plainti suing in a federal court to prove that he
has suered: (1)an actual or imminent concrete injury-in-
fact, rather tha n a hypothetica l or speculative injury; that is
(2)traceable to the defendant’s challenged actions; and that
is (3)capable of redress by a favorable judicial decision.15
In some circumstances, a threatened injury may consti-
tute an imminent injury sucient to meet the injury test for
standing if the harm is likely to occur in the relatively near
future. In Babbitt v. United Farm Workers National Union,16
the Court stated: “One does not have to await the consum-
mation of t hreatened injury to obtain preventive relief.
If the injury is certainly impending that is enough.”17 e
Defenders Court’s imminent injury test is similar to Babbitt’s
approach to threatened injuries.18 e imminent injury test,
however, fails to provide a clear standard for dening what is
a sucient probability of a risk to a plainti or how quickly
it must result to the plainti to meet the imminence prong of
the standing test.19 For instance, the Ninth Circuit has inter-
preted the imminent standing test to include an increased
risk of harm.20 e Ninth Circuit’s approach to the immi-
nence test is arguably implicitly overruled by the subsequent
Summers decision.21
B. Procedural Standing
e Supreme Court has applied a more relaxed standing test
for plaintis who assert t hat the government has violated a
procedural right gua ranteed in a statute.22 In footnote seven
of Defenders, Justice Scalia’s majority opinion stated that
plaintis who may suer a concrete injury resu lting from
a procedural violation by the government are entitled to a
more relaxed application of the redressability and the imme-
diacy standing requirements, because remedying the pro-
cedural violation by, for example, providing for additional
public notice and comment, may not change the substantive
15. Id.; Mank, Global Warming, supra note 6, at 23-24.
16. 442 U.S. 289 (1979).
17. Id. at 298 (internal quotation marks omitted) (quoting Pennsylvania v. West
Virginia, 262 U.S. 553, 593 (1923)); see also Valley Forge Christian Coll.
v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472
(1982) (reasoning that a threatened injury may satisfy standing requirement);
Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979); Friends of
the Earth, Inc. v. Gaston Copper Recycling Corp. (Gaston Copper), 204 F.3d
149, 160, 30 ELR 20369 (4th Cir. 2000) (en banc) (“e Supreme Court has
consistently recognized that threatened rather than actual injur y can satisfy
Article III standing requirements.”).
18. See Defenders, 504 U.S. at 560-61.
19. See Bradford Mank, Standing and Future Generations: Does Massachusetts v.
EPA Open Standing for Generations to Come?, 34 C. J. E. L. 1, 39
(2009) [hereinafter Mank, Future Generations]; Bradford Mank, Standing and
Statistical Persons: A Risk-Based Approach to Standing, 36 E L.Q. 665,
685 (2009) [hereinafter Mank, Standing and Statistical Persons].
20. Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1151, 31 ELR
20246 (9th Cir. 2000) (interpreting “imminent” standing test to include an
increased risk of harm).
21. See infra Part IV.A.
22. Mank, Future Generations, supra note 19, at 35-39.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.

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