Summers v. Earth Island Institute Rejects Probabilistic Standing, But a 'Realistic Threat' of Harm is a Better Standing Test
University of Cincinnati Public Law Research Paper No. 09-34
70 Pages Posted: 1 Nov 2009 Last revised: 12 Nov 2009
Date Written: November 1, 2009
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.
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