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WYOMING v. OKLAHOMA Scalia, J., dissenting

reopening of an additional mine, with the incremental cost that entails.* The speculations Wyoming invites us to engage in are certainly plausible (though one must be given pause by the fact that the Wyoming coal companies themselves—who if Wyoming is right have lost not just the tax on the severances but the entire profits—have not chosen to litigate). Were this a trial on the record I might well conclude that it is more likely than not that Wyoming was injured. But “at the summary judgment stage [our] function is not to weigh the evidence.” Anderson, supra, at 249. It has at least not been conclusively established that Wyoming coal producers would have sold coal in addition to that diverted from the (presumably) lost Oklahoma sales. A genuine issue of material fact thus exists, and the Special Master’s recommendation that we grant Wyoming’s motion for summary judgment must be rejected. III Even if Wyoming had fully established, in the manner Rule 56 provides, the “injury in fact” required by Article III, I would still conclude that it does not have standing to bring this suit, and would grant Oklahoma’s cross-motion for summary judgment. “Beyond the constitutional requirements, the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 474 (1982). affidavit that “[i]n [his] opinion” the lost sales could not be made up. Affidavit of Seth Schwartz, Appendix to Response to Motion to Dismiss A–3. That is not enough to establish the point. Schwartz did not, as Rule 56(e) requires, set forth the “facts” upon which he based his opinion. Just as the requirements for summary judgment are not met when a court makes unsubstantiated inferences about a third party’s behavior, see, e. g., Lujan v. National Wildlife Federation, 497 U. S. 871, 884–885 (1990), they are not met when the plaintiff hires an outside expert to do the same.
 * Wyoming’s expert, a coal market analyst from Virginia, averred by