Informational Standing After Summers

Abstract

In its recent Wilderness Society v. Rey decision, the Ninth Circuit addressed the difficult question of when a statute may establish a right to informational standing. The decision interpreted the Supreme Court’s decision in Summers v. Earth Island Institute, and concluded that general notice and appeal provisions in a statute that do not establish an explicit public right to information from the government are insufficient to establish informational standing. The Wilderness Society decision indirectly raised the broader question of when Congress may modify common law injury requirements or even Article III constitutional standing requirements. Although the Wilderness Society decision relied on the implications of Summers, the Ninth Circuit would have been better advised to examine Justice Kennedy’s concurring opinions in Lujan v. Defenders of Wildlife and Summers. His opinions suggest that Congress has significant authority to expand citizen suit standing as long as it carefully defines the statutory injuries it seeks to remedy. Wilderness Society is important because it is the first court of appeals decision that attempts to reconcile Summers and FEC v. Akins, the crucial informational standing case. Although the result in Wilderness Society may be correct, the Ninth Circuit failed to grasp the full complexities of the Supreme Court’s standing jurisprudence. This Article argues how to best interpret Lujan, Summers, and Akins in determining how much authority Congress has to establish informational standing and other standing rights that have divided lower federal courts.