Julia Smith Gibbons

“ If they instead continued their normal activities, they would still be fearful, but whether they would actually be subject to surveillance is purely speculative. They are like the Lyons plaintiff who can show nothing more than a fear of the use of a chokehold. See Laidlaw, 528 U.S. at 184 (discussing the "'subjective apprehensions' that such a recurrence would even take place" in Lyons) . By contrast, if the Laidlaw plaintiffs had resumed their abandoned activities, they would definitely have been subject to the defendant's conduct-illegal discharges into the river. ”

“ That it may be unsatisfying that facts pertinent to the standing inquiry are unavailable can have no bearing on the disposition of this case. If the state secrets privilege prevents the plaintiffs from presenting adequate evidence of their standing, we must dismiss their claims. If the state secrets privilege prevents the government from presenting evidence that might refute the plaintiffs' allegations that they are likely to be surveilled and undercut the reasonableness of their asserted fear, we must also dismiss the plaintiffs' claims. ”

“ The Laidlaw majority's discussion of Lyons and its observations about the Laidlaw plaintiffs explain exactly why plaintiffs here are like the plaintiff in Lyons, who lacked standing, and unlike those in Laidlaw, who had standing. Like the plaintiffs in Laidlaw and Lyons, the plaintiffs in the present case may have a reasonable fear of harm from the defendants' conduct. See id. at 184-85 (finding plaintiffs' fear of "economic and aesthetic harms" from "illegal discharges of pollutants" to be "entirely reasonable") ”