The Supreme Court's Decision on Standing in Summers vs. Earth Island Institute, Part Two

by Robert Glicksman

March 10, 2009

(CPR Member Scholar Robert L. Glicksman replies below to CPR Member Scholar William Buzbee’s post on the Summers vs. Earth Island Institute decision.)


The decision in Summers represents the latest salvo in a continuing battle between those Supreme Court Justices who view the function of standing doctrine as ensuring that litigation before the federal courts is capable of being presented in an adversary context suitable for judicial resolution, and those who regard it as a fundamental bulwark against intrusion by the judicial branch on the prerogatives of the legislative and executive branches. As late as 1968, the Court remarked in a case called Flast v. Cohen that standing law “does not by its own force raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government.” Justice Scalia, who wrote the majority opinion in Summers as well as in the Lujan case referred to in Bill’s post, has insisted that, to the contrary, standing is all about, and only about, separation of powers.


The Justices who, like Justice Scalia, view standing law through a separation of power lens, consistently take a narrower, and more rigid view of the kinds of disputes that are capable of judicial resolution. The farther away from the traditional model of a lawsuit between two private parties in which one alleges injury stemming from something like a breach of contract or a tort, the more hostile Justice Scalia and those of his ilk have been to allowing such a suit to proceed in federal court.


This position is somewhat ironic given Justice Scalia’s professed concern for protecting legislative and executive branch prerogatives. Whether Justice Scalia likes it or not, we now live in a world in which Congress creates regulatory agencies and delegates to them the power to take actions, such as protecting the environment, that Congress believes are in the public interest. Congress also has authorized private litigants, through citizen suit and other judicial review provisions, to challenge alleged misuses of delegated power by administrative agencies in the courts, and has handed the federal courts the responsibility of adjudicating such challenges and reversing agency actions that are inconsistent with statutory mandates. The Summers decision and the restrictions it places on the ability of those challenging government action to show standing to sue has the potential to infringe severely on congressional prerogatives by allowing agencies to ignore statutory responsibilities (such as to allow public participation in decisions concerning permissible uses of the federal government’s lands) and allowing courts to abdicate their assigned responsibility to insist that agencies abide by their statutory mandates.


Another curious aspect of the Court’s separation of powers focus relates to the statement, noted in Bill’s post, that “the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.” The separation of powers aficionados have identified three showings that a plaintiff seeking to sue in federal court must make: the plaintiff must show (1) an injury in fact, (2) that was caused by the defendant’s action, and (3) that is redressable by a favorable decision for the plaintiff. All three requirements are rooted in Article III. Yet, even in the second Lujan case, the Court took the position that a plaintiff alleging procedural injury does not have to meet “all the normal standards for redressability and immediacy.” But if all three standing requirements are rooted in Article III, and Article III limitations on federal court jurisdiction are meant to protect separation of powers, why does the injury in fact requirement (as narrowly construed in Summers) represent any more of a “hard floor” than causation or redressability?

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Robert L. Glicksman is the J. B. and Maurice C. Shapiro Professor of Environmental Law at the George Washington University Law School. He is a member of the board of directors of the Center for Progressive Reform.

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