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 insucient 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-specic issues could
be distinguished from Summers, which required plaintis to
address site-specic 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-
I. A Brief Introduction to Procedural
A. The Three Part-Constitutional Standing Test
Article III of the U.S. Constitution does not specically
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 rened 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.
Lujan v. Defenders
of Wildlife, 504 U.S. 555
, 560-61, 22 ELR
requiring a plainti suing in a federal court to prove that he
has suered: (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 sucient 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 dening what is
a sucient 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
B. Procedural Standing
e Supreme Court has applied a more relaxed standing test
for plaintis 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
plaintis who may suer 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.
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
(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
, 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].
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®, http://www.eli.org, 1-800-433-5120.