Environmental Law, <em>Clapper v. Amnesty International USA</em>, and the Vagaries of Injury-in-Fact: "Certainly Impending" Harm, "Reasonable Concern," and "Geographic Nexus"

Abstract

Clapper v. Amnesty International USA further muddies the already confusing doctrine of injury-in-fact in the law of Article III standing. This article examines Clapper and proposes clarification of three problematic aspects of injury-in-fact, which arise in environmental litigation: the concepts of “certainly impending harm;” “reasonable concern;” and “geographic nexus.” Clapper’s broad language suggesting that imminent injury must meet a very strict, “certainly impending” standard should be viewed in light of the case law adjudicating probabilistic harms, which reveals that “certainly impending” does not even approach a preponderance standard. Rather, it encompasses a wide range of environmental and public health risks where the plaintiffs have established a nexus to the challenged action. Clapper should be interpreted as denying standing because of the plaintiffs’ inability to establish a nexus to surveillance activities, akin to the geographic nexus required in environmental cases. Clapper can also be distinguished because of its reliance on the uncertainty associated with subsequent, intervening actions required to consummate the alleged injury. Clapper’s language conflating the “reasonable concern” doctrine from Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. with the “certainly impending” test must be corrected, and “reasonable concern” should be presumed in future cases where the plaintiffs establish a geographic nexus to violations of environmental law. Finally, the test for geographic nexus in environmental cases should account for indirect and cumulative impacts, and should not depend on proof of nexus to precise acreages.