In its recent The Wilderness Society v. Rey decision, the Ninth Circuit addressed the difficult question of when a statute may establish a right to informational standing. The D.C. Circuit and the Sixth Circuit had previously reached different conclusions about whether environmental statutes promoting public participation or requiring environmental assessments in certain circumstances create a right to informational standing. The Ninth Circuit in its The Wilderness Society decision interpreted the Supreme Court’s 2009 decision in Summers v. Earth Island Institute, which explicitly narrowed procedural rights standing, as implicitly narrowing standing rights in general and concluded that general notice and appeal provisions in a statute that are designed to promote public participation, but 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 may Congress modify common law injury requirements or even Article III constitutional standing requirements for a concrete injury. That question in turn raises broader separation of powers questions. While The Wilderness Society decision relied on the implications of Summers to limit informational standing, the Ninth Circuit would have been better advised to examine Justice Kennedy’s concurring opinions in Lujan v. Defenders of Wildlife [hereinafter Defenders] and Summers as a guide to the Supreme Court’s approach to when Congress may confer standing rights. Justice Kennedy’s concurring opinions in Defenders and Summers suggest that Congress has significant authority to expand citizen suit standing as long as it carefully defines the statutory injuries it seeks to remedy through such suits.
In FEC v. Akins, the Supreme Court in an opinion by Justice Breyer, joined by five other justices including Justice Kennedy, endorsed informational injuries as potentially sufficient for standing. Justice Scalia wrote a dissenting opinion, which was joined by two other justices, arguing that the plaintiffs did not have standing because their injury was common to the public at large and did not cause them a particularized injury essential for standing. Lower court decisions have divided when plaintiffs in environmental cases have sought standing based on an alleged informational injury resulting from the government or a private defendant’s failure to provide information about their environmental impacts. In Lyng, the D.C. Circuit questioned but did not decide, whether informational injury alone can meet the Article III injury in fact requirement, although the case was decided before Akins. By contrast, citing Akins, a divided panel of the Sixth Circuit in American Canoe concluded that environmental groups had informational standing to seek information about water pollution issues pursuant to the citizen suit provision of the Clean Water Act.
The Wilderness Society is important because it is the first court of appeals decision that attempts to reconcile Summers and Akins. The result in The Wilderness Society that Congress must explicitly establish informational standing rights may be correct, but the Ninth Circuit failed to grasp the full complexities of the Supreme Court’s standing jurisprudence by focusing only at how Summers might limit Akins without examining Justice Kennedy’s concurring opinions in Defenders and in Summers in understanding how far Congress may go in conferring standing rights for the public. Because he was the key swing vote in Defenders and Summers and was a member of the Akins majority, Justice Kennedy’s analysis of standing issues is crucial in understanding the Supreme Court’s standing jurisprudence and how the Court might address the informational standing issues that have divided the lower courts. This Article argues how to best interpret Defenders, Summers and Akins in determining how much authority Congress has to establish informational standing and other standing rights that have divided lower federal courts.
Mank, Bradford, "Informational Standing After Summers" (2012). Faculty Articles and Other Publications. 213.