Footnotes (368)



Summers v. Earth Island Institute Rejects Probabilistic Standing, But a 'Realistic Threat' of Harm is a Better Standing Test

Bradford C. Mank

University of Cincinnati - College of Law

November 1, 2009

Environmental Law, Vol. 40, 2010
University of Cincinnati Public Law Research Paper No. 09-34

In Summers v. Earth Island Institute, the Supreme Court recently rejected Justice Breyer’s dissenting opinion’s proposed test for organizational standing based upon the statistical probability that some of an organization’s members will likely be harmed in the near future by a defendant’s allegedly illegal actions. Implicitly, however, the Court had recognized some form of probabilistic standing in Friends of the Earth v. Laidlaw, which found standing where plaintiffs avoid recreational activities because of “reasonable concerns” about future health injuries from pollution; Summers did not overrule Laidlaw. There is an inherent tension between the Summers and Laidlaw decisions. This Article applies the Summers and Laidlaw frameworks to the facts in Natural Resources Defense Council v. EPA (NRDC II), where the D.C. Circuit found standing because the government’s exemption from regulation of certain uses of methyl bromide, an ozone destroying chemical, would causes 2 to 4 lifetime skin cancer cases among the NRDC’s members. Both Summers and Laidlaw produce questionable results when applied to NRDC II’s facts.

The “realistic threat” test in Justice Breyer’s dissenting opinion in Summers offers a better approach to standing than either Summers’ 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. There was a more realistic threat of harm in Summers than Laidlaw, but the Court found standing in the latter case but not the former case. 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. 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. In light of NRDC II, the Court should abandon both the Summers and Laidlaw approaches to standing and instead adopt Justice Breyer’s proposed “realistic threat” test to achieve reach more equitable and uniform standing determinations.

Number of Pages in PDF File: 70

Open PDF in Browser Download This Paper

Date posted: November 1, 2009 ; Last revised: November 12, 2009

Suggested Citation

Mank, Bradford C., Summers v. Earth Island Institute Rejects Probabilistic Standing, But a 'Realistic Threat' of Harm is a Better Standing Test (November 1, 2009). University of Cincinnati Public Law Research Paper No. 09-34. Available at SSRN: http://ssrn.com/abstract=1497647

Contact Information

Bradford C. Mank (Contact Author)
University of Cincinnati - College of Law ( email )
P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0094 (Phone)
513-556-1236 (Fax)
Feedback to SSRN

Paper statistics
Abstract Views: 1,483
Downloads: 95
Download Rank: 193,206
Footnotes:  368

© 2016 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollobot1 in 0.281 seconds