Third Journal Summary for Upcoming Publication of ASU Law Journal

Revisiting the Lyons Den: Summers v. Earth Island Institute’s Misuse of Lyons’s “Realistic Threat” of Harm Standing Test by Bradford Mank

The Arizona State Law Journal will soon publish an article by Bradford Mank.  Professor Mank is the James Helmer, Jr. Professor of Law at the University of Cincinnati College of Law. He has written a series of articles discussing the doctrine of standing. This latest article discusses the Supreme Court’s 2009 decision in Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009), in depth and discusses perceived inconsistencies between this latest word on standing and previous applications of the test in other decisions. Professor Mank faults the majority and the dissenting opinions for “failing to discuss how subsequent decisions applied or distinguished Lyons’s realistic threat test.”

A plaintiff must satisfy the standing requirement to file suit in federal courts. Standing is a judicial doctrine announced based on the Supreme Court’s interpretation of the U.S. Constitution’s Article III “case and controversy” requirement. The doctrine Standing is shown by “establishing that the defendant’s action have caused him an actual or imminent injury, and not merely a speculative or hypothetical injury that might occur someday.” In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Supreme Court announced that to satisfy standing, a plaintiff must show a “realistic threat.”

In Lyons, Los Angeles police officers stopped Lyons for a routine traffic stop. During the stop, an officer placed Lyons in a chokehold that left Lyons unconscious. Lyons showed that others had also been injured or killed by the use of the chokehold. He sought to enjoin the use of the chokehold. The Court concluded that Lyons did not face a realistic threat of being stopped by police and subjected to the chokehold in the future. Therefore, Lyons lacked standing.

The Court applied this realistic threat test in Summers v. Earth Island Institute. In Summers, plaintiffs were members of an environmental group that sought to enjoin the Forest Service from excluding salvage sale of timber the notice, comment and appeals process required by the Forest Service Decisionmaking and Appeals Reform Act of 1992. The agency had created regulations under the Act that excluded timber sales of less than 250 acres from the process.

Justice Scalia wrote the majority opinion, declaring that it was unlikely that one of the environmental groups’ members would visit one of the affected areas, even though members could show that they had visited areas in the past and would visit the forests in the future. The majority opinion held that the probability of visiting one of the affected areas was like Lyons’ probability of being subjected to a chokehold, and therefore failed the “realistic threat” test. Justice Breyer’s dissenting opinion also limited its analysis to the Court’s decision in Lyons, but came to the opposite conclusion, stating it was probable for one of the groups’ members to visit an affected site.

Professor Mank took issue that neither opinion looked to cases decided since Lyons that applied the realistic threat test in different factual scenarios. Reviewing these decisions, Professor Mank shows how the test was more likely to give a plaintiff standing where plaintiffs had been frequently subjected to the action sought to be enjoined in the past, the action being sought to be enjoined was the result of a plaintiff’s illegal activity, or if an official policy had changed concerning the official action making it less likely the action would be repeated in the future. Applying these decisions to the facts of Summers, Professor Mank shows how many of these distinguishing features were present. By doing so, Professor Mank argues “Justice Scalia’s majority opinion in Summers seriously misapplied the realistic threat test in Lyons to the facts of Summers.”