Injury in Fact, Then and Now (and Never Again): Summers v. Earth Island Institute and the Need for Change in Environmental Standing Law
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Citation16 Mo. Env. L. & Pol. Rev __
AbstractThis article has 3 goals: to describe the origins and development of environmental standing law, to present theoretical objections to the requirement that environmental plaintiffs demonstrate an “injury in fact” as it is currently understood, and to use the Court’s recent decision in Summers v. Earth Island Institute to ground those theoretical objections in an actual case, and demonstrate the inadequacies of modern environmental standing doctrine. The article concludes that modern standing doctrine has no rational basis in constitutional analysis or even reasoned jurisprudence, but rather stems from a series of decisions exhibiting confused and obscure reasoning. Further, from a normative perspective, there is no reason to believe that the Constitution, either structurally via the doctrine of separation of powers or directly via Article III, requires plaintiffs to demonstrate “injury in fact.” Finally, the Court’s decision in Summers upholding the injury in fact requirement demonstrates several important truths: the Court’s efforts to liberalize standing doctrine in several recent cases were insufficiently aggressive to accomplish a permanent shift, and the injury in fact doctrine has real negative implications both for the intellectual integrity of environmental standing law and for the environment itself.
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