Standing and Rights of Action in Environmental Litigation
By Roger Beers
The plaintiffs in environmental litigation often face a maze of procedural dead-ends which they must avoid to
get to a hearing on the substance of their case. Of principal concern are those doctrines which may require dismissal in even the most meritorious case -- for example, the requirements of standing, ripeness or exhaustion of
administrative remedies. The unwary plaintiff may find that he's the wrong person, that it is the wrong time, or the
wrong place.
These doctrines are scarcely unique to environmental litigation. Indeed, in part they limit the jurisdiction of the
federal courts to hear any claim. However, they have all figured heavily in environmental litigation and often take
peculiar twists in that area of the law. This paper is intended to serve as a primer for some of the typical issues of
standing and implied rights of action. Issues relating to ripeness and exhaustion of administrative remedies are
addressed in a companion paper.
I. STANDING
1. What is Standing?
When Dr. Samuel Johnson rejected Mrs. Macaulay's argument for the equality of mankind because she would
not invite her footman to sit down to dinner with them, n1 he was not really dealing with the substance of her argument. He was instead applying a concept akin to the requirement of "standing." Regardless of the merits of the
claim, is this party entitled to assert it?
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n1 J. Boswell, Life of Johnson 775 (Oxford University Press, 3d ed. 1953).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In American jurisprudence, the concept of "standing to sue" is one aspect of the "case or controversy" limitation on federal jurisdiction contained in Article III of the Constitution. While it thus cuts across every subject matter
of litigation, it has rarely had the decisive role in shaping a body of law that it has had in the environmental field.
As one commentator has observed, "the expansion of standing . . . has made possible the veritable revolutions
that have occurred in environmental law . . ." over the past three decades. n2 Indeed, standing to protect environmental interests is now so firmly entrenched that it is surprising to recall that less than thirty years ago few
courts had opened their doors to the protection of anything but economic or property rights.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n2 Schwartz, Administrative Law, p. 460 (2d ed., 1984).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - 2. What are the Contexts for Standing Issues?
People today are still thrown out of court for lack of standing in environmental cases. It remains the threshold
question and can arise in a variety of contexts:
"Citizens' suits." Many environmental statutes expressly confer standing to challenge agency actions on "any
person" or "citizen." n3 In fact, most environmental statutes or amendments enacted after the Clean Air Act in
1970 contain such citizen suit provisions. n4 On the other hand, in cases where judicial review is provided for the
granting or denial of a permit, statutes customarily confer standing only upon an "aggrieved" party.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n3 See, e.g., Federal Water Pollution Control Act, § 505, 33 U.S.C. § 1365; Clean Air Act § 304, 42 U.S.C. § 7604.
n4 See, e.g., Resource Conservation and Recovery Act, 42 U.S.C. § 6972(b)(1)(A); Noise Control Act, 42 U.S.C. §
4911(b)(1)(A); Marine Protection Research and Sanctuaries Act of 1972, 33 U.S.C. § 1415(g)(2)(A); Endangered
Species Act, 16 U.S.C. § 1540(g); Deepwater Port Act, 33 U.S.C. § 1515; Toxic Substances Control Act, 15 U.S.C. §
2619; Safe Drinking Water Act, 42 U.S.C. §§ 3002-3008; Surface Mining Control and Reclamation Act, 30 U.S.C. §
1270; and Outer Continental Shelf Lands Act, 43 U.S.C. § 1349(a).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - Review under the Administrative Procedure Act. When there are no "citizens' suit" provisions, the standing to
bring actions to review the decisions of federal agencies is determined under the federal Administrative Procedure
Act. In circumstances where there is no "citizen suit" provision and review is not available under the APA, the question becomes whether there is an "implied right of action" under the statute sought to be enforced -- a topic discussed in section II of this paper.
Administrative proceedings. Some demonstration of standing may be required by statute or regulation to intervene in an administrative proceeding, although participation in these proceedings is in general liberally afforded.
There is a split in the circuits as to whether an intervenor must establish its own standing, in addition to meeting Rule 24(a)(2)'s interest requirement, before intervening. The Seventh, Eighth and D.C. Circuits have held that
both showings are required. See Jones v. Prince George's County, 348 F.3d 1014, 1017 (D.C. Cir. 2003); South
Dakota v. Ubbelohde, 330 F.3d 1014, 1023 (8th Cir. 2003); Solid Waste Agency v. United States Army Corps of
Eng'rs, 101 F.3d 503, 507 (7th Cir. 1996). On the other hand, the Second, Fifth, Sixth, Ninth and Eleventh Circuits
have all held that an intervenor need only meet Rule 24(a)(2)'s requirements that the intervenor have an interest
in the litigation. See United States v. Tennessee, 260 F.3d 587, 595 (6th Cir. 2001); Dillard v. Baldwin County
Comm'rs, 225 F.3d 1271, 1277-78 (11th Cir. 2000); Ruiz v. Estelle, 161 F.3d 814, 829-30 (5th Cir. 1998);
Yniguez v. Arizona, 939 F.2d 727, 731 (9th Cir. 1991); United States Postal Serv. v. Brennan, 579 F.2d 188, 190
(2d Cir. 1978). For these circuits, Article Ill's standing requirement is met so long as the original parties to the litigation have standing. In San Juan County v. United States, 420 F.3d 1197 (10th Cir. 2005), the Tenth Circuit
joined the latter circuits in holding that an intervener need not establish its own standing, so long as another party
with constitutional standing on the same side as the intervenor remains in the case.
3. What are the Tests for Standing?
The Article III "Minima." The Supreme Court articulated three requirements for Article III standing in Lujan v.
Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 2136, 119 L.Ed. 2d 351(1992): n5
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n5 These three elements of the Article III "minima" were previously formulated somewhat differently in Valley
Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982). In that
case, the Supreme Court denied standing to the plaintiff taxpayers or citizens who were challenging a federal conveyance of property to a church as a violation of the establishment clause, but in the course of the majority opinion Justice Rehnquist attempted in effect a "restatement" of standing:
"[A]t an irreducible minimum, Art. III requires the party who invokes the Court's authority to 'show [1]
that he personally has suffered some actual or threatened injury as a result of the putatively illegal
conduct of the defendant,' Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979), and
[2] that the injury 'fairly can be traced to the challenged action' and [3] 'is likely to be redressed by a
favorable decision,' Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 (1976)."
Elsewhere in the opinion in Valley Forge, the Article III "minima" are tersely described as "[t]he requirement of 'actual injury redressable by the court', or as "a demonstration of 'distinct and palpable injury' . . . that is likely to be
redressed if the requested relief is granted." In addition, the court noted that the plaintiff must show that "he personally would benefit in a tangible way from the court's intervention." 454 U.S. at 481 n. 17.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - (1) Injury-in-fact. The plaintiff must have suffered an "injury in fact" - an invasion of a legally-protected interest
which is (a) concrete and particularized and (b) "actual or imminent, not 'conjectural' or 'hypothetical.'" Thus, generalized grievances are insufficient. n6 There remains a question as to whether proof of injury-in-fact is still required when standing is conferred on "any person" or "citizen" by a statutory "citizens' suit" provision. However, the
better reasoning appears to be that even Congress cannot dispense with the Article III "minima" for standing. n7
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n6 See Bowker v. Morton, 541 F.2d 1347 (9th Cir. 1976) (allegations of desire to buy more land at reasonable
prices in an area held insufficient to confer standing to enforce the federal 160 acre farm size limitation).
n7 See Sierra Club v. SCM Corp., 580 F. Supp 862 (1984) (injury-in-fact must be shown in suits brought under
Section 505 of the Federal Water Pollution Control Act). See also, Public Interest Research Group of New Jersey v.
Powell Duffryn Terminals Inc., 913 F.2d 64, 70 (3rd Cir. 1990), cert. denied, 111 S.Ct. 1018; Natural Resources
Defense Council v. Patterson, 791 F. Supp. 1425 (E.D.CA. 1992) (the "injury in fact" requirement of standing is an
Article III mandate). But see, Idaho Conservation League v. Mumma, 956 F. 2d 1508 (9th Cir. 1992) ("Where . . .
Congress is the source of the purportedly violated legal obligation, we look to the statute to define the injury.")
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - (2) Causation. There must be a causal connection between the injury and the conduct complained of - the injury has to be "fairly . . . traceable to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court." n8
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n8 Thus, standing was denied plaintiffs who sought to attack a zoning regulation on the ground that it inhibited
the construction of low cost housing when they could not establish that their inability to locate housing was the
result of the challenged restrictive zoning practices. Warth v. Seldin, 422 U.S. 490 (1975). However, in Northeastern Fla. Chapter of the Associated Gen. Contractors v. City of Jacksonville, 113 S. Ct. 2297, 124 L. Ed. 2d 586
(1993), standing was granted to a contractors' association challenging local ordinances that granted partial preferences in the award of city contracts to minority business enterprises, despite the fact that it had failed to
demonstrate that but for the program any of its members would have bid successfully for any of the contracts. The
court distinguished Warth as involving claims that members could not obtain variances and permits, whereas this
case involved claims that the contractors could not bid on contracts with an equal footing with minorities. See also, Grutter v. Bollinger, 539 U.S. 306, 317 (2003) (Applicant for law school admission had standing to challenge
her rejection on grounds that race was the predominant factor in admissions).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - (3) Redressability. This requirement is the flip-side of causation. It must be "likely," as opposed to merely
"speculative," that the injury will be "redressed by a favorable decision." If there are other contingencies which
must be satisfied for the plaintiffs "injury" to be redressed, he may lack standing. n9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n9 See Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 253 (1977) (developer had standing to attack municipal zoning ordinance which prohibited a particular type of construction, when there was a "current likelihood" that he would be able to obtain financing).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - A noteworthy non-environmental case employed each of the Article III "minima" to deny standing to challenge
particular provisions of the Campaign Reform Act of 2002. In McConnell v. Federal Election Comm., 124 S. Ct.
619 (2003), the Supreme Court held that no "injury in fact" which was "actual or imminent" had been established
by a Senator challenging restrictions on charges for air time by broadcast stations in the 45 day period before primary elections because his current term did not expire until 2009. The Court held that the "fundraising disad-
vantage" alleged by other plaintiffs was not "fairly traceable" to other provisions challenged because it was the
result of their personal choice not to solicit or accept the large campaign contributions permitted by the statute.
Finally, the Court held that the relief requested by other plaintiffs would not "redress" their alleged injury in fact
because other provisions causing that injury would remain unchanged. n10
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n10 In Crete Carrier Corp. v. EPA, 363 F.3d 490 (D.C. Cir. 2004), the court denied standing to trucking companies
to challenge EPA's refusal to reconsider standards that allegedly increased the cost of truck engines because even
if the challenge were successful the engine manufacturers would still be bound by a consent decree with EPA
which required adherence to similar standards. Although the court applied the "causation" element of standing to
reach this result, the "redressability" requirement also appears to be apt.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - Another interesting case which explores the different elements of standing is Dellums v. Nuclear Regulatory
Commission, 863 F.2d 968 (D.C. Cir. 1988). The D.C. Circuit denied standing to all of the parties challenging the
Nuclear Regulatory Commission's grant of an import license for uranium from South Africa as a violation of the
Anti-Apartheid Act. The members of Congress and anti-nuclear proliferation and anti-apartheid organizations were
unable to demonstrate "injury-in-fact," an exiled black South African was unable to show "causation" between the
grant of the license and his inability to return home; and an unemployed domestic uranium worker was unable to
show that denial of a license was likely to "redress" his unemployment.
The "Zone of Interest" Test. In addition to these constitutional requirements, the courts have imposed a further "prudential" requirement that the plaintiff show the injury he or she has suffered falls within the "zone of interests" that the statute was designed to protect. See Lujan v. National Wildlife Federation, 497 U.S. 871, 883
(1990). n11 The purpose of the "zone of interests" test is "to exclude those plaintiffs whose suits are more likely to
frustrate than to further statutory objectives." Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 397, 107 S. Ct. 750
n.12 (1987). Standing is barred on this ground only if the "interests are so marginally related to or inconsistent
with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit
the suit." Id. at 399. The test is satisfied if the plaintiff establishes that its interests "share a 'plausible relationship'
to the policies underlying" the statute. Ocean Advocates v. Corps of Engineers, 361 F.3d 1108, 1121 (9th Cir.
2004).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n11 As discussed below under the section dealing with the zone of interest test, there was formerly a split of authority in the circuits as to whether this test applies only in suits for review under the APA or also in the context of
citizen suits expressly authorized by statute. In Bennett v. Spear, 117 S.Ct. 1154 (1997), the court stated that the
doctrine applied in both contexts.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - Other "Prudential" Limits on Standing. In addition to the Article III "minima," Justice Rehnquist also listed in the
Valley Forge opinion certain "prudential" limits on standing which have been fashioned by the courts:
"Beyond the constitutional requirements, the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing. Thus, this Court has held that 'the plaintiff generally must assert his own legal rights and interest, and cannot rest his claim to relief on the legal
rights or interests of third parties.' Warth v. Seldin, 422 U.S. at 499. In addition, even when the
plaintiff has alleged redressable injury sufficient to meet the requirements of Art. III, the court has
refrained from adjudicating 'abstract questions of wide public significance' which amount to 'generalized grievances,' pervasively shared and most appropriately addressed in the representative
branches. Id., at 499-500. Finally, the court has required that the plaintiff's complaint fall within 'the
zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'
Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153 (1969)." n12
These prudential limitations can be overridden by Congress in defining standing requirements in particular statutes. See Bennett v. Spear, 117 S.Ct. 1154 (1997); Center for Auto Safety v. National Highway Traffic Safety Administration, 793 F. 2d 1322 (D.C. Cir. 1986), discussed infra. However, Justice Rehnquist's formulation of prudential limitations is far less precise than the Article III "minima," and to some extent may overlap them.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n12 454 U.S. at 474-75. The reasons for these prudential limitations were succinctly stated in Maryland v. Joseph
Munson, 467 U.S. 947, 52 U.S.L.W. 4875, 4877 (1984), citing United States v. Raines, 362 U.S. 17, 22 (1960)
and Baker v. Carr, 369 U.S. 186, 204 (1962): "The limitation 'frees the court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their
constitutional applications might be cloudy'; and it assures the court that the issues before it will be concrete and
sharply presented."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - The above principles apply only to standing to bring actions in federal courts. The standing requirements for
actions in state courts may differ significantly. For example, California's more relaxed rules for standing include
broad standing for taxpayers. See Cantrell v. City of Long Beach, 241 F.3d 674, 683 (9th Cir. 2001). n13 "State
courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when
they address issues of federal law." ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989). For this reason, in Virginia
v. Hicks, 539 U.S. 113, 120-121 (2003), the Supreme Court rejected arguments that the plaintiff lacked standing
to sue in state court. It reviewed upon certiorari the defendant's claim that the state court had misapplied federal
law, because the state court judgment in plaintiff's favor caused injury in fact to the defendant. However, more
lenient state standing requirements do not relieve a plaintiff from meeting the more stringent federal standards
when state law claims are brought in federal court. ASARCO, Inc. v. Kadish, 490 U.S. 605, 618 (1989).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n13 As previously noted, the Supreme Court has held that individuals did not have standing as federal taxpayers
to challenge federal agency action. Valley Forge Christian College v. Americans United for Separation of Church
and State, 454 U.S. 464 (1982). In Daimlerchrysler Corporation v. Cuno, 2006 U.S. LEXIS 3956 (May 15, 2006),
the court held that individuals had no standing as either state or municipal taxpayers under Article III to challenge
state tax or spending decisions. However, the Court has noted with approval the standing of municipal taxpayers
to enjoin the illegal use of a municipal corporation's funds. See, e.g., Frothingham v. Mellon, 262 U.S. 447 (1923).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - 4. What Kinds of Interests are Necessary for Standing?
Ideological Concerns. At the outset of the wave of environmental litigation that began in the 1970's, the Supreme Court announced that the federal courts were not open to plaintiffs who simply had a general ideological
concern for the environment. In Sierra Club v. Morton, n14 the court held that the Sierra Club lacked standing to
challenge development of Mineral King because it had not alleged a concrete injury to the interests of its members in the use of Mineral King. n15 For an environmental membership organization like the Sierra Club this obstacle was readily surmounted by accepting the Supreme Court's invitation in the Morton case to allege injury to
its members' use of the particular environment.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n14 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972)
n15 See also, Sierra Club v. Andrus, 610 F.2d 581, 9 ELR 20772, 20776-20777 (9th Cir. 1979) ("An organization's abstract concern with a subject is insufficient to confer the requisite standing").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
However, the organization which makes this general allegation must be prepared -- if asked -- to identify some
of its members whose interests are threatened by the defendants' actions. In Sierra Club v. SCM Corp., n16 the
Second Circuit rejected the Sierra Club's claim to standing based on the allegation of "some injury to some of its
members," when the Club refused to identify any of its members who might have been harmed. The court reiterated the Morton requirement that there be more than a "mere interest in the problem . . . to ground an injury in fact."
n17
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n16 747 F.2d 99, 104 (2d Cir. 1984). See also Individuals for Responsible Government, Inc. v. Washoe County,
110 F.3d 699 (9th Cir. 1997).
n17 747 F.2d at 104, citing Sierra Club v. Morton, 405 U.S. 727, 734 (1972). The SCM holding was followed by
the Second Circuit in Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir. 1985). The court
found that a plaintiff organization had standing to sue, based on alleged injury to named members. These authorities do not require that the organization's members be identified in the complaint, but only that the plaintiff be
prepared to identify some of them if a challenge is made to standing. See Bldg. & Constr. Trades Council of Buffalo v. Downtown Dev., Inc., 2006 U.S. App. LEXIS 11377 (2d Cir. 2006). Nor do they require that the plaintiff organization produce its membership lists in discovery or identify all members who are affected by defendant's actions.
Typically, standing is established by disclosure of a discrete number of members whose interests will be affected
by the actions challenged. In a California case, the plaintiff environmental organizations, who had filed a motion
for attorney's fees, were required to submit information for in camera review regarding the plaintiffs' funding for
litigating the case, in order that the Court could determine whether the suit had been prosecuted for public or private benefit. Save Open Space Santa Monica Mountains v. Superior Court, 2000 Cal.App.LEXIS 800 (2000). The
court observed that plaintiffs might ultimately have to identify their donors to the litigation.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - The rule in Sierra Club v. Morton has posed particular difficulties for standing when the motivating concern is
the prevention of cruelty to animals. In Animal Legal Defense Fund v. Quigg, 932 F.2d 920 (Fed.Cir 1991), a diverse range of plaintiff organizations and individuals tried to challenge a rule issued by the Commissioner of Patent and Trademarks that genetically engineered animals could be patented. The court held that none of the plaintiffs had standing to challenge the rule. Two of the plaintiff groups, including the Association of Veterinarians for
Animal Rights, asserted "only a general interest in preventing cruelty to animals." Id. at 936. Such a "mere 'value
preference'" amounted to a failure "to allege any legally cognizable injury." Id. (emphasis by the court). n18
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n18 See also Animal Lover's Volunteer Association, Inc. v. Weinberger, 765 F.2d 939 (9th Cir. 1985) (animal welfare organization which sought to halt Navy plans to shoot wild goats on federal property "has not differentiated its
concern" for the prevention of inhumane treatment of animals "from the generalized abhorrence other members
of the public may feel at the prospect of cruelty to animals.").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - The Supreme Court has upheld the standing of members of a legislative body to contest a decision holding a
statute unconstitutional, despite the fact that their interest could properly be characterized as "ideological." See
Karcher v. May, 484 U.S. 72, 82 (1987) (state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests); INS v. Chadha, 462 U.S.
919, 930 (1983) (Congress held a proper party to defend measure's validity where both Houses by resolution, had
authorized intervention in the lawsuit). However, in Arizonans for Official English v. Arizona, 117 S.Ct. 1055
(1997), the court expressed "grave doubts" as to the standing of initiative proponents who asserted that they had
a quasi-legislative interest in defending in court the initiative measure that they successfully sponsored. The court
held that their standing was dubious because they were not elected state legislators, authorized by state law to
represent the state's interests.
In Raines v. Byrd, 117 S. Ct. 2312 (1997), the court held that certain Members of the 104th Congress, who
had voted against passage of the Line Item Veto Act, did not have standing to challenge the constitutionality of the
Act. The court observed that the plaintiffs had not been singled out for especially unfavorable treatment as opposed to other Members of their respective bodies, but claim that the Act causes a type of institutional injury
which damages all Members of Congress equally. Their claim is thus based on a loss of political power, not loss of
something to which they are personally entitled, such as their seats as Members of Congress after their constituents elected them. The court also attached importance to the fact that the plaintiffs had not been authorized to
represent their respective Houses in this action, and that indeed both Houses actively oppose their suit. It concluded that the plaintiffs had not been deprived of an adequate remedy since they may repeal the Act or exempt
appropriations bills from its reach. The court also stated that its decision did not foreclose the Act from constitutional challenge by someone who suffers judicially cognizable injury resulting from it.
Generalized Grievances. The plaintiff's interest must also be distinguished from the interests of the general
public in order to acquire standing. n19 In Center for Auto Safety v. National Highway Traffic Safety Administration, 793 F. 2d 1322 (D.C. Cir. 1986), the court upheld plaintiff-organizations' standing to challenge the low fuel
economy standards set for light trucks on the ground that the standards would reduce the range of fuel efficient
light trucks available to plaintiffs' members. The court rejected the government's argument that plaintiffs' claims
were unreviewable "generalized grievances," because it found that in this instance Congress had intended to confer standing to the limits of Article III, and it did not matter that "a large number of people share the injury and
would benefit from the redress." 793 F. 2d 1322, 17 ELR at 20047.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n19 See United States v. Hays, 115 S. Ct. 2431 (1995) (appellees' position that "anybody in the State" can state a
racial gerrymander claim is rejected, and they must show that they, personally, have been subjected to a racial
classification); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978) (dictum).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In dissent, then-Judge Scalia, argued that plaintiffs' claims were "of interest only to society at large" and were
not grounded on "the personal hurt that alone justifies judicial interference with execution of the laws." 793 F. 2d
1322, 17 ELR at 20052. Much of the majority and dissenting opinions on this issue were devoted to examining
the scenarios by which plaintiffs' members' interests would allegedly be injured by the standards. Indeed, a subsequent, related challenge to EPA's fuel efficiency standards provoked an even division of the en banc court on
the question of whether the petitioners had met the standing requirements. Center for Auto Safety v. Thomas, 847
F.2d 843 (D.C. Cir. 1988).
In Federal Election Comm v. Akins, 524 U.S. 11 (1998), the Supreme Court held that there were more than
"generalized grievances" being asserted by a group of voters challenging the Federal Election Commission's refusal to treat another organization as a "political committee" that would thereby be required to file certain informational reports. In response to the argument that the harm suffered by the plaintiffs - their failure to obtain information -- was a grievance shared by all or a large class of citizens, the Court said that this language dismissing
standing "appears in cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature -- for example, harm to the 'common concern for obedience to law.'" 524 U.S. at 23.
Of course, the most "generalized grievances" imaginable arise in cases challenging actions that deplete the
ozone layer or affect global warming. In Covington v. Jefferson County, 358 F.3d 626 (9th Cir. 2004), the court
upheld standing for the claim of neighboring property that a landfill had violated the Clean Air Act by failing to prevent the release of ozone-depleting substances from refrigerators dumped in the landfill. Despite the fact that the
alleged environmental harm was global in scope, the majority opinion did not consider the question of whether the
claim was a "generalized grievance." Rather, the court noted that the redressability and imminence of injury requirements of standing were "relaxed" because part of the plaintiffs' claims were based on procedural irregularities. 358 F.3d at 641. The concurring opinion argued that their claim was not a barred "generalized grievance"
because it was not "abstract," citing Akins, supra. 358 F.3d at 650-53. See also, Pye v. United States, 269 F.3d
459, 469 (4th Cir. 2001) ("so long as the plaintiff. . .has a concrete and particularized injury, it does not matter
that legions of other persons have the same injury"). In NRDC v. EPA, 440 F.3d 476 (D.C. Cir. 2006), discussed
below, the court reached a contrary result in a case also involving ozone depletion as the harm.
In Massachusetts v. EPA, 549 U.S. (April 2, 2007), the Supreme Court upheld the standing of Massachusetts to challenge EPA's denial of a rulemaking petition to compel it to regulate auto emissions of "greenhouse
gases." Ultimately, the Court held that EPA was required to consider such emissions as "air pollutants" under the
Clean Air Act and remanded the matter to the agency to determine whether they should be regulated under the
Act. Before doing so, it considered at length Massachusetts' standing to prosecute the case (noting that if Massachusetts had standing it was unnecessary to consider the standing of the other states and the plaintiff environmental organizations).
The majority opinion, written by Justice Stevens, applied the tripartite test for standing in Lujan v. Defenders
of Wildlife, discussed below. However, as the court noted, the normal standards of redressability and immediacy
are applied less stringently when the suit is based on the plaintiff's "procedural right to protect his concrete interests" afforded by Congressional statute -- in this case the right to challenge agency action unlawfully withheld. The
court held that such a litigant has standing if there is "some possibility that the requested relief will prompt the
injury-causing party to reconsider the decision that allegedly harmed the litigant."
In applying these principles, the court first emphasized that the suit was brought by a state rather than a private party as in the Defenders of Wildlife case, and Massachusetts actually owns a great deal of the territory alleged to be affected. Because of "Massachusetts' stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis."
The court stated that "the harms associated with climate change are serious and well recognized." The fact
that "these changes are widely shared does not minimize Massachusetts' interest in the outcome of this litigation."
In particular, the court noted that rising sea levels have "already begun to swallow Massachusetts coastal land"
and that "[r]emediation costs alone . . .could run well into the hundreds of millions of dollars." Because EPA did not
dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming,
its refusal to regulate such emissions, "[a]t a minimum. . . 'contributes' to Massachusetts' injuries."
The court then rejected EPA's argument that its decision not to regulate "contributes so insignificantly to petitioners' injuries" that it could not be sued, and that there is no realistic possibility that the relief sought would mitigate global climate change and remedy petitioners' injuries. In response, the court stated that agencies, like legislatures, "do not generally resolve massive problems in one fell regulatory swoop, . . .but instead whittle away at
them over time, refining their preferred approach as circumstances change and as they develop a more nuanced
understanding of how best to proceed." That "a first step might be tentative" does not by itself negate federal-court
jurisdiction.
The court then noted that the United States' transportation sector emits an enormous quantity of carbon dioxide into the atmosphere. The court held that "the fact that the effectiveness of a remedy might be delayed during
the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant,"
and that a "reduction in domestic emissions would slow the pace of global emissions increases, no matter what
happens elsewhere."
Chief Justice Roberts dissented, joined by Justices Scalia, Thomas and Alito. He first accused the majority of
"changing the rules" of standing by according special status to a suit by a State. He argued that there was no support in the court's prior case law for this proposition, and that Congress had not singled out states for protection of
their procedural rights in the provision of the APA relied upon by the majority as the basis for the suit. He said that
the standing rules are not relaxed simply because a state has the ability to sue as parens patria.
The Chief Justice then attacks the notion that any particularized injury has been shown by the allegations that
Massachusetts will suffer a loss of coastal land as a result of global warming. His trump card, however, is the notion that "[t]he very concept of global warming seems inconsistent with this particularization requirement." Because "[g]lobal warming is a phenomenon harmful to humanity at large," it cannot serve as the particularized injury in fact for a suit by anyone. Finally, he accuses the majority of "using the dire nature of global warming itself as a
bootstrap for finding causation and redressability." In sum, the Chief Justice concludes that the majority opinion
"recalls the previous high-water mark of diluted standing requirements" in the SCRAP case, discussed infra. In a
separate dissent by Justice Scalia, also joined by the other three dissenting justices, he argued that the majority
opinion was wrong on the merits of the lawsuit.
It remains to be seen whether Massachusetts v. EPA will be one of the oddities of the Supreme Court's standing jurisprudence like the SCRAP case. Only the month before, In Lance v. Coffman, 549 U.S. (per curiam. March
5, 2007), the Court denied standing to advocacy groups noting that "[t]he only injury plaintiffs allege is that the
law. . .has not been followed" and that it would not countenance this "kind of undifferentiated, generalized grievance about the conduct of government."
Use of the "Particular" Environment. Distinguishing the plaintiff's interests from those of the general public really often requires no more than establishing that the plaintiff (or in the case of an organization, its members) has
"used" the environment in question and ipso facto has an interest in its protection. Thus, fishing, hiking, camping,
nature studies, and other recreational uses have been held sufficient to confer standing. n20 In United States v.
Students Challenging Regulatory Agency Procedures (SCRAP), n21 the Supreme Court held that a student group's
allegation that its members used forests, streams, mountains and other resources for recreation in the Washington, D.C. area was sufficient to confer standing to challenge an order of the Interstate Commerce Commission allowing railroads to collect a surcharge on freight rates for recyclable materials. n22 The SCRAP decision makes
clear that the environmental use sufficient to confer standing includes aesthetic appreciation of an area. n23
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n20 Sierra Club v. Morton, 405 U.S. 727 (1972).
n21 412 U.S. 669(1973).
n22 412 U.S. at 670; see also Schwartz, Administrative Law, supra, note 2, at 479. The decision in SCRAP is
somewhat of an anomaly, given the tenuous connection between the littering of recreation areas and the rates
charged by railroads for the transportation of materials which would allegedly otherwise wind up as litter.
n23 See also Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252
(1991) (holding increased noise, pollution and accidents were injury in fact for nearby residents' challenge to increase in facilities at National Airport). Additional authorities support the separate proposition that standing may
be conferred where physical harm or risk of health damage exists. See Crowther v. Seaborg, 312 F. Supp. 9205
(D.Colo. 1970) (Public benefit corporation has standing to bring class action against proposed nuclear detonation
on behalf of all persons entitled to life, health and enjoyment of natural resources); and Environmental Defense
Fund v. Hardin, 428 F.2d 1093 (D.C. Cir. 1970) (environmental organization has standing to challenge Secretary
of Agriculture's refusal to take action on the group's petition to restrict use of DDT).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - The SCRAP decision became doubtful precedent in light of the court's decision in Lujan v. National Wildlife
Federation, 110 S.Ct. 3177, 3189 (1990), overturning a Court of Appeal's decision which had placed "great reliance" on SCRAP. The court stated, "The SCRAP opinion, whose expansive expression of what would suffice for
Section 702 [of the Administrative Procedures Act] review under its particular facts, has never since been emulated by this Court." The court added that since the procedural context between the two cases was different, SCRAP
was inapplicable. As previously noted, Chief Justice Roberts' stated in his dissent in Massachusetts v. EPA that the
majority opinion in that case "recalls the previous high-water mark of diluted standing requirements" in the SCRAP
case.
National Wildlife Federation and other cases hold that it is the plaintiff's use of the particular environment in
question that must be proven to establish standing in this regard. Thus, in an earlier decision in Wilderness Society v. Griles, 824 F.2d 4 (D.C. Cir. 1987), the court denied standing to national environmental groups challenging a
Bureau of Land Management Policy which would result in a transfer of greater amounts of Alaska land from federal ownership to the State or natives. Although the plaintiffs alleged that their members travel and enjoy recreational use of lands throughout Alaska, and that the transfer of additional lands would injure their members' interests in the use of these lands for recreational purposes, the court denied standing because "plaintiffs have not
pointed to any specific lands that they wish to use that will be so transferred."
In part, the plaintiffs' quandary in Griles arose from the fact that the identification of the actual excess lands
that would be transferred as a result of the BLM policy had to await the response of third parties -- the State or
natives -- in their choice of lands to be transferred. The court emphasized that in such circumstances the proof of
injury-in-fact turns on "whether the plaintiffs future conduct will occur in the same location as the third party's response to the challenged governmental action." See also Grassroots Recycling Network, Inc. v. United States EPA,
368 U.S. App. D.C. 308 (D.C. Cir. 2005) (The plaintiffs lacked standing to pursue a challenge to an EPA rule allowing states to grant variances for landfill requirements because of a number of steps that would be required by
third parties before any variance could be granted for the landfill near their homes.). But see Bennett v. Spear,
117 S.Ct. 1154 (1997), discussed infra. n24
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n24 The problem posed by the uncertainty of "third party" actions also underlies the "causation" requirement for
standing. As previously noted, in Crete Carrier Corp. v. EPA, 363 F.3d 490 (D.C. Cir. 2004), the court denied standing to trucking companies to challenge EPA's refusal to reconsider standards that allegedly increased the cost of
truck engines. The engine manufacturers' response to an invalidation of those standards was deemed too uncertain to support the standing of the trucking companies. The court characterized the trucking companies' arguments as "[s]peculative and unsupported assumptions regarding the future actions of third-party market participants." 363 F.3d at 494.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In the National Wildlife Federation case, the plaintiff NWF challenged actions by the BLM to lift protective restrictions on almost 180 million acres of land and potentially to open them up for development or disposal. Initially, NWF did not apparently treat the standing issue seriously. Thus, in response to a motion for summary judgment
on the standing issue, its only showing was comprised of (1) the declarations of two individuals who said only that
they made use of public lands "in the vicinity" of two areas of public lands out of the millions of acres that were the
subject of the lawsuit, and (2) the declaration of an NWF officer that the organization's ability to provide information to its members on issues of concern was hampered by the BLM's failure to do EIS's. After the D.C. Circuit
reversed the district court's denial of standing, the Supreme Court in turn reversed the D.C. Circuit.
The court held that the two affidavits were not sufficient to establish that the interests of the declarants were
"actually affected." n25 In response to a motion for summary judgment, plaintiffs must establish much more specific use of affected land. The court stated that although there was room for debate "at the margin" as to how specific the "specific facts" alleged must be, the standard is "assuredly not satisfied by averments which state only
that one of respondent's members uses unspecified portions of an immense tract of territory, on some portion of
which mining activity has occurred or probably will occur by virtue of the governmental action."
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n25 The court reiterated, however, that an injury to "recreational use and aesthetic enjoyment" was an appropriate
type of injury to establish standing. Thus, the court appears to acknowledge that the NWF could have had standing
to challenge the decisions of the BLM affecting specific parcels of land if the affidavits had alleged that NWF
members actually used those particular parcels.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - The requirement of "use of the particular environment" has been construed somewhat more liberally in subsequent cases. For example, in Friends of the Earth v. Laidlaw Environmental Services, 120 S.Ct. 693 (2000), a
Clean Water Act citizen suit alleged violations of an NPDES permit at a hazardous waste incinerator on the banks
of a river. Several of the plaintiff organizations' members filed declarations detailing the injury they had or would
suffer because of suspected pollution of the river. Of those members, some lived within two miles of the incinerator, another lived 20 miles away, and still others did not specify where they lived. Some of the members filing declarations said that they had engaged in recreational activities on the river in the past, while others were deterred
from such activities by Laidlaw's alleged discharges of pollutants. One affiant claimed only that he "had canoed"
on the river some 40 miles downstream from the incinerator. Considering the standing question sua sponte, the
Supreme Court held that all these individual members of the plaintiff organizations had stated injuries to their
aesthetic and recreational interests sufficiently specific to allow standing, because all of them "use the affected
area and are persons 'for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity." 120 S. Ct. at 705. n26
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n26 Standing to raise Clean Water Act claims is not limited to plaintiffs who allege aesthetic or recreational injuries or who are riparian ownes of the stream. See Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 10031004 (11th Cir. 2004); Friends of the Earth, Inc. v. Gaston Coppert Recycling Corp., 204 F.3d 149, 154 (4th Cir.
2000) (noting that "in some instances, environmental injury can be demarcated as a traditional trespass on property or a tortious injury to a person").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In Ecological Rights Foundation v. Pacific Lumber Company, 230 F.3d 1141, 1149 (9th Cir. 2000), the Ninth
Circuit expressed its view of the Laidlaw decision as follows:
Under Laidlaw, then, an individual can establish "injury in fact" by showing a connection to the area
of concern sufficient to make credible the contention that the person's future life will be less enjoyable - that he or she really has or will suffer in his or her degree of aesthetic or recreational satisfaction - if the area in question remains or becomes environmentally degraded. Factors of residential
contiguity and frequency of use may certainly be relevant to that determination, but are not to be
evaluated in a one-size-fits-all, mechanistic manner.
See also Friends of the Earth v. Gaston Copper Recycling Corp., 204 F.3d 149, 156-60 (4th Cir. 2000) (en banc)
(an affiant who lived adjacent to a creek four miles downstream from an alleged polluter's discharges stated an
injury in fact sufficient to confer standing on an environmental group to which he belonged.)
Nor must a plaintiff "show that he has a right of access to the site on which the challenged activity is occurring." Cantrell v. City of Long Beach, 241 F.3d 674, 681 (9th Cir. 2001). In Cantrell, the court held that standing
was conferred on birdwatchers challenging Navy action that would disrupt bird habitat on the Navy's land because
of their desire to view the birds "from publicly accessible locations" outside the Navy land. 241 F.3d at 680-681.
However, allegations of a project's harm to the particular environment used by the plaintiffs that would otherwise satisfy the Laidlaw test may not suffice once the project has been built. In Nat'l Comm. for the New River, Inc.
v. FERC, 433 F.3d 830 (D.C. Cir. 2005), the plaintiff asserted claims that a constructed pipeline had deviated from
the approved route and other agency requirements for the pipeline had been violated. However, standing was denied because the plaintiff's affidavits described only the harms its members would suffer if a pipeline were constructed and did not detail any harms that would be avoided if the pipeline were required to be rerouted as a result of their suit.
Broad Agency Programs. In the National Wildlife Federation case, the Supreme Court established a further
hurdle to standing in the process of overturning the Court of Appeals' alternative holding. The Court of Appeals had
held that four additional affidavits, which the District Court had not considered, should have been considered and
were sufficient to establish standing. The Supreme Court held that those affidavits, which averred more specific
use of the land, were still not sufficient to establish standing because the BLM's "land withdrawal program" being
challenged was not an identifiable "agency action" -- much less a "final" one. The court noted that the described
"program" does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM
orders and regulations, but is simply the name by which the BLM has occasionally referred to certain continuing
(and thus constantly changing) operations regarding public lands. As the court stated, "the flaws in the entire 'program' cannot be laid before the courts for wholesale correction under the APA simply because one of them that is
ripe for review adversely affects one of respondent's members."
The court emphasized, however, that it was not stating a new rule, but only the "traditional" and "normal"
mode of operation. The court also did not rule out a basis for a suit that challenged an agency "program" if the
plaintiffs could point to some single regulation or action that applied "across the board":
"If there is in fact some specific order or regulation, applying some particular measure across-theboard to all individual classification terminations and withdrawal revocations, and if that order or
regulation is final, and has become ripe for review, it can of course be challenged under the APA by
a person adversely affected -- and the entire 'land withdrawal review program,' insofar as the content of that particular action is concerned, would thereby be affected. But that is quite different from
permitting a generic challenge to all aspects of the 'land withdrawal review program,' as though that
itself constituted a final agency action."
The court thus did not purport to be establishing any broad new rules, but merely to be applying established standing doctrine and the standards contained in the Administrative Procedure Act and Rule 56, governing summary
judgments. n27
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n27 The court did not even mention, let alone overrule, several cases which entertained broad based challenges
to federal decisions of wide impact. Such challenges have been part of the established business of the courts.
Indeed, the Supreme Court has itself consistently entertained broad based challenges to actions of the federal
government affecting millions of acres of land or facilities all over the country without requiring that the environmental groups suing be able to assign some specific person to every square inch that might be affected. See, e.g.,
Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718 (1976); Andrus v. Sierra Club, 442 U.S. 347, 99 S.Ct. 2335
(1979). To the extent that the court remains concerned about standing to challenge broad agency "programs,"
Kleppe is suggestive of the ways that courts can in appropriate circumstance deflect such efforts without erecting
generalized standing barriers. In that case, the court never questioned the standing of the environmental groups
to challenge Interior's "program" for strip mining the Northern Great Plains, but nevertheless denied relief by finding that the actions of Interior did not constitute the kind of "proposal" for action which Congress had determined
required invocation of NEPA's procedures. Another ready tool to prevent too-expansive or intrusive judicial review
of "programs" is the ripeness doctrine.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In Foundation on Economic Trends v. Lyng, 943 F.2d 79 (D.C.Cir. 1991), the plaintiffs sought to compel the
Department of Agriculture to do an EIS on its "germplasm preservation program." The Department had done an
initial assessment under NEPA, and found that the activities did not have a significant environmental effect. Id. at
82. The court held that the germplasm preservation program "is no more an 'identifiable action or event'" than the
Land withdrawal program that was challenged in National Wildlife Federation, and thus the plaintiffs had no standing. Id. at 86. In so holding, the court focused on the underlying agency program that was the subject of environmental analysis, rather than on the agency finding that there was no significant impact from that program. The
court stated that it "recognize[d] that this tends to merge standing under the APA with the merits of a plaintiff's
NEPA claim." Id. at 85. One judge dissented in part, stating that the majority's analysis "reads too much" into National Wildlife Federation. Id. at 87. The dissent would have found "informational standing," and would read National Wildlife Federation such that it "simply clarifies the degree of factual specificity with which the plaintiff must
allege each of [the standing prerequisites] when his right to judicial review is attacked on summary judgment." The
dissent also would have found the Department's issuance of a Finding of No Significant Impact under NEPA to be
a "specific, readily identifiable final agency decision" subject to review. Id. at 88.
On the other hand, in Idaho Conservation League v. Mumma, 956 F. 2d. 1508 (9th Cir. 1992) the court upheld the standing of plaintiffs challenging the Forest Service's decision to recommend against wilderness designation for numerous roadless areas within the Idaho Panhandle Forest, claiming violations of the National Forest
Management Act and NEPA. The court acknowledged that further discretionary governmental action would be required before any actual development took place, and that there would be site-specific EIS's before any development. Nonetheless, the court recognized that the plaintiffs' challenge of the initial plan and the EIS that was done
to consider the impacts of that initial plan, alleged harms that were "immediate, not speculative." (emphasis by
the court). The court explained: "If the agency action only could be challenged at the site-specific development
stage, the underlying programmatic authorization would forever escape review."
Economic or Competitive Interests. Except for the decisions in cases challenging actions affecting vast acreages of land, the foregoing summary demonstrates that individuals and organizations seeking to protect environmental values have in the past been given a wide berth in the federal courts. In contrast, economic interests attempting to enforce environmental laws have fared less well. The irony of this different treatment is unmistakable
when it is again recalled that there was once uncertainty as to whether standing would ever be available for anything but economic interests.
The cases have fairly consistently rejected attempts by economic interests to gain a competitive advantage by
the enforcement of environmental laws. Thus, standing was denied to a group of common carriers who sought to
set aside an order of the ICC granting a competing carrier permission to operate in interstate commerce on the
ground that the ICC had not filed an EIS. n28
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n28 Churchill Truck Lines, Inc. v. United States, 533 F.2d 411 (8th Cir. 1976). See also, Ashley Creek Phosphate
Co. v. Norton, 420 F.3d 934, 936 (9th Cir. 2005) (Standing requirements not satisfied by phosphate company's
allegation that it might become an alternate supplier of phosphate if it succeeded in its NEPA action challenging
another company's phosphate mining project); Gifford-Hill & Co. v. FTC, 523 F.2d 730 (D.C. Cir. 1975) (standing
denied to cement manufacturer who challenged a decision by the government to institute an adjudicatory proceeding without compliance with NEPA, where the manufacturer was solely concerned with delaying administrative
efforts to enforce antitrust laws); Clinton Community Hospital Corp. v. Southern Maryland Medical Center, 510
F.2d 1037 (4th Cir. 1975) (private hospital denied standing under NEPA to enjoin construction of a competing
hospital on environmental grounds because the plaintiffs' sole motivation in bringing the suit was competitive advantage).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - However, in a non-environmental case, the Supreme Court held that commercial banks had standing under
the Administrative Procedure Act to challenge the federal National Credit Union Administration's approval of charter amendments that expanded the permissible groups that could be members of a particular Federal Credit Union, which competed with the banks. National Credit Union Administration v. First National Bank & Trust Co., 118
S. Ct. 927 (1998). The court held that competitors of financial institutions have prudential standing to challenge
agency action relaxing statutory restrictions on those institutions' activities.
Standing has also been denied in some instances where economic interests sought to use environmental
laws as a means of reducing their liability for certain costs. Thus standing was denied to a plaintiff who alleged
violation of the Endangered Species Act to challenge a Remedial Action Plan designed by the Navy and the Department of the Interior to clean up pollution at a Naval Station that entailed draining a marsh in which an endangered mouse lived. Allied-Signal, Inc. v. Lujan, 736 F.Supp. 1558 (N.D.Cal. 1990). The plaintiff, who was responsible for paying a portion of the Plan's cost, wished to enforce the Act as a means to reduce its liability. The New
York Court of Appeals denied standing to a plastics industry trade association challenging a local county's compliance with that state's "little NEPA" in passing a law banning certain uses of plastics, on the ground that the association's interests were strictly economic and were thus not within the "zone of interests" protected by the little
NEPA. See The Society of the Plastics Industry v. County of Suffolk, Slip op. (Decided May 9, 1991). See also
Waste Management of Alameda County, Inc. v. County of Alameda, 79 Cal. App. 4th 1223 (2000) (commercial
and competitive interests are not within the zone of interests California's "little NEPA" was intended to preserve or
protect and cannot serve as a beneficial interest for purposes of the standing requirement.)
Standing has been granted to the users of natural resources who have an economic interest in their protection -- such as commercial fishermen. n29 In contrast, other users of natural resources have been denied standing
where their interests were seen as inimical to the protection of the environment. Thus, in Nevada Land Action Assoc. v. Forest Service, 8 F.3d 713, 716 (9th Cir. 1993), the holders of grazing permits on federal lands sought to
challenge under NEPA a plan which would result in decreases in grazing levels in a National Forest. The plaintiffs
asserted that the plan affects their "human environment," has therefore caused "lifestyle loss" as well as economic loss, and that they have an economic interest in maintaining the forest resources and therefore in protecting the
environment. The court denied standing because the increased grazing levels plaintiffs sought would not benefit -and indeed would damage -- the natural environment, and it held that they could not invoke NEPA to prevent "lifestyle loss" when the lifestyle in question is damaging to the environment.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n29 See Pack v. Corps of Engineers, 428 F. Supp. 460 (D.C.Fla. 1977) (Shrimpers).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - Where government action directed at private corporations will have adverse environmental consequences, the
corporations have been granted standing to enforce environmental laws. For example, standing was upheld where
the court found that cancellation of the plaintiff's helium supply contracts would result in a depletion of the country's helium resources. n30 In another case, standing was upheld where a requirement by the government for
pipeline and refinery divestiture would result in unnecessary depletion of natural resources and cause increased
pollution. n31
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n30 National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971). But see Region 8 Forest Service Timber
Purchasers Council v. Alcock, 993 F.2d 800, 808 n.11 (11th Cir. 1993) (Contract Disputes Act bars consideration
of contract injuries in assessing whether petitioners have standing under NEPA).
n31 Mobil Oil Corp. v. FTC, 430 F. Supp. 855 (S.D.N.Y. 1977), reversed on other grounds, 562 F.2d 1970, 10 ERC
1710 (2d Cir. 1977).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In some instances, businesses whose facilities will be directly affected by the environmental impact of an action have been held to have standing to challenge it. n32 For example, in Hazardous Waste Treatment Council v.
Environmental Protection Agency, 861 F.2d 277 (D.C. Cir. 1988), the court held that a trade association had
standing to challenge as inadequate EPA regulations of the handling and disposal of used oil under RCRA, on behalf of member firms who engaged in the treatment of hazardous waste and the manufacture of equipment for
that purpose. Struck by the "apparent anomaly of regulated entities demanding stricter regulation," the court
granted petitioner standing based on the damage to its members' receiving facilities from contaminated used oils
-- acknowledged to be a strictly commercial interest -- but denied standing on the basis of the competitive injury
that would occur from enabling other firms to use less costly treatment practices. On the other hand, in Citizens
Coordinating Committee v. Washington Metropolitan Area Transit Authority, n33 the D.C. Circuit denied standing
under the Clean Water Act to a shopping mall which claimed that it suffered "aesthetic damage" from pollutant
discharges into a nearby stream, precisely because the mall had not alleged that it suffered a loss of customers or
any other economic damage from the discharges. The court noted that although a corporation is a person for
some purposes, it was beyond even the realm of legal fiction to hold that "it has senses and so can be affronted by
deterioration in the environment."
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n32 See Port of Astoria v. Hodel, 595 F.2d 467, 9 ELR 20252, 12 ERC 204 (9th Cir. 1979) (broadcasting company's transmitting facilities affected by industrial plant). However, in Western Radio Services Co., Inc. v. Espy, 79
F.3d 896 (9th Cir. 1996), the court held that electronic interference problems did not confer standing on the operator of mobile service communications facilities to bring a NEPA challenge to the Forest Service's grant of a
permit to another company for construction of a tower at the site of the plaintiffs' facilities. The court stated that
plaintiffs complaint was only that the permit will cause "economically harmful interference" and not that it "will
have a primary impact on the natural environment." On that basis the court distinguished the Port of Astoria case.
See also Pacific Northwest Bell Telephone Co. v. Dole, 633 F. Supp. 725 (W.D. Wash. 1986) (denying standing in
NEPA suit where telephone company's facilities will be disrupted by construction project).
n33 765 F.2d 1169 (D.C. Cir. 1985).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - Of course, businesses which will sustain increased costs from an environmental regulation have generally
been held to have standing to seek judicial review of the regulation. This standing may exist even for interests that
do not directly own an affected facility but which will bear a share of the increased costs through contractual obligations. See Central Arizona Water Conservation District v. EPA, 36 ERC 1177 (9th Cir. 1993). However, it is still
necessary for such businesses to plead their interests within the existing standing requirements, including that the
interests they seek to vindicate are within the "zone of interests" sought to be protected by the statute which the
regulations allegedly violate. Id.; National Recycling Coalition v. Browner, 984 F.2d 1243 (D.C. Cir. 1993).
The Supreme Court upheld the standing of economic interests to proceed under the citizen suit provisions of
the Endangered Species Act in Bennett v. Spear, 117 S.Ct. 1154 (1997). In that case, the plaintiffs who used irrigation water from reservoirs complained about the prospective loss of water allocated to them from the reservoirs
by reason of a biological opinion of the Fish & Wildlife Service that the continued long term operation of the reservoirs by the Bureau of Reclamation was likely to jeopardize two endangered fish species and identifying as an al-
ternative the maintenance of minimum water levels in those reservoirs. The Ninth Circuit had upheld the dismissal
of their claims on the ground that their interests did not fall within the "zone of interest" protected by the Endangered Species Act, namely the preservation of endangered species.
The Supreme Court reversed in an opinion written by Justice Scalia for a unanimous Court. The court held that
the citizen suit provision's conferral of the right to sue on "any person" must be taken "at face value." While the
decision seems ultimately correct in concluding that economic interests directly affected by regulatory action
should have a right to challenge that action under the statute in question, Justice Scalia's reasoning took a tortured path to that conclusion. In a seeming about face from his pronouncements in Lujan v. Defenders of Wildlife
(discussed below), Justice Scalia declared:
Our readiness to take the term 'any person' at face value is greatly augmented by two interrelated
considerations: that the overall subject matter of this legislation is the environment (a matter in
which it is common to think all persons have an interest) and that the obvious purpose of the particular provision in question is to encourage enforcement by so-called 'private attorneys general.'
After conceding that "it is true that the plaintiffs here are seeking to prevent application of environmental restrictions rather than to implement them," Justice Scalia nevertheless concluded that the authority for "any person" to sue applies to all causes of action authorized by the citizen suit in question -- "not only to actions against
private violators of environmental restrictions, and not only to actions against the Secretary asserting under enforcement . . . but also to actions against the Secretary asserting over enforcement" of the law. The court's other
pronouncements regarding standing were of interest in other respects and are considered at other places
throughout this paper.
Consumer Interests. It is well established that consumers injured by impermissible regulations satisfy Article
III's standing requirements. See GMC v. Tracy, 519 U.S. 278, 286 (1997)("Consumers who suffer [higher costs]
from regulation forbidden under the Commerce Clause satisfy the standing requirements of Article III."); Baur v.
Veneman, 352 F.3d 625, 628, 641-42 (2d Cir. 2003) (finding cognizable injury in fact where consumer alleged
that USDA regulations permitting use of downed livestock for human consumption caused him increased rish of
contracting food-borne illness); Center for Auto Safety v. National Highway Traffic Safely Admin, 793 F.2d 1322,
1324 (D.C. Cir. 1986) (finding that consumers suffered sufficient injury in fact to challegne regulations reducing
fuel economy standards "because the vehicles available for purchase will likely be less fuel efficient than if the
fuel economy standards were more demanding"). In Harvey v. Veneman, 396 F.3d 28, 34 (1st Cir. 2005), the
court held that a consumer of organic foods suffered an injury in fact because the challegend regulations weakened the integrity of the organic food program and the standards it sets forth, thereby degrading the quality of
organically labeled foods.
5. What Constitutes "Actual or Imminent" Injury?
The Supreme Court followed up its decision in Lujan v. National Wildlife Federation with Lujan v. Defenders of
Wildlife, 112 S.Ct. 2130 (1992), and increased the focus of standing inquiry on how "actual or imminent" the injury is. Like the National Wildlife Federation case, the Defenders of Wildlife case has broad implications for the traditional standing allegations made by environmental groups in challenging large-scale federal agency programs.
Indeed, Justice Blackmun concluded his dissent by stating, "I cannot join the court on what amounts to a slash
and burn expedition through the law of environmental standing."
At issue in the Defenders of Wildlife case was judicial review of a regulation adopted by the Department of Interior interpreting Section 7 of the Endangered Species Act, as applicable only to actions within the United States
and not in foreign countries. The regulation further required agencies funding or undertaking actions in foreign
countries to consult with the Secretary of the Interior. The proof of standing submitted by Defenders of Wildlife to
challenge this regulation were two declarations by members who stated that they had visited foreign countries
where endangered species existed, that these were the sites of proposed foreign actions funded by federal agencies which would affect those species, and that they planned to return to those areas.
Justice Scalia, writing for the majority, held that there was no injury in fact established by these declarations.
He noted that the "intent to return to the places they had visited before. . .is simply not enough," and that "such
'some day' intentions -- without any description of concrete plans, or indeed any specification of when the some
day will be -- do not support a finding of the 'actual or imminent' injury that our cases require." He further stated
that in fact the allegations made to support standing demonstrated that it was partially within the plaintiffs control
whether the harm will ever occur. The premise of Justice Scalia's argument in this regard appears to be that if the
endangered species is wiped out and the plaintiff decides not to return to the area, the plaintiff has therefore suffered no harm. n34
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n34 It bears emphasis that it is the injury to the plaintiffs, not the injury to the wildlife, which is the issue here.
Thus, in Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cir. 2001), the court held that the plaintiffs were not
required to show that birds would be harmed by the elimination of their habitat, but only that the plaintiffs' opportunities for viewing the birds would be impaired.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - How mincing a view of standing this is becomes apparent from another observation of Justice Scalia. It is
clear that he would be comfortable with standing for a person "who observes or works with a particular animal"
that was in imminent danger of being destroyed by federal action. He notes that it stretches "the outermost limit of
plausibility" to say that elimination of some animals in the species could be a harm, even if you worked with them
in that area. n35
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n35 Justice Scalia also would have denied standing on grounds of redressability. However, he was not joined by
five justices in this part of the opinion, which is discussed below in the context of "redressability."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - It seems clear that the standing allegations made by the plaintiffs in this case were somewhat cavalier. In contrast in Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568 (9th Cir. 1992), the complaint alleged that "the organizations [bringing suit] and their members derive scientific, recreational, and aesthetic benefit and enjoyment from
the existence in the wild of the Mt. Graham Red Squirrel." There were also declarations that specific members of
the organizations do in fact observe and enjoy the squirrel in its natural habitat on Mount Graham. The Ninth Circuit held this was sufficient to confer standing on the plaintiffs. Similarly, in a pair of decisions involving the northern spotted owl, the Ninth Circuit upheld standing on the basis of declarations from individual members of the
plaintiff environmental organizations that indicated "a pattern of continuous use of spotted owl habitat by individual members on BLM land and that individual declarants have observed and wish to continue to observe owls on
that land." Portland Audubon Society v. Babbitt, 998 F.2d 705, 708 (9th Cir. 1993); see also Seattle Audubon
Society v. Espy, 998 F.2d 699, 703 (9th Cir. 1993) ("It is clear that the declarants have been using and will continue to use forest lands suitable for owl habitat on a regular basis."). The court did not require that plaintiffs identify specific tracts of forest that government approval of logging would allegedly adversely impact. See Portland
Audubon Society, supra, 998 F.2d at 708; Seattle Audubon Society, supra, 998 F.2d at 703. n36
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n36 In these two cases, the Ninth Circuit squarely rejected the claim that the Supreme Court's decisions in National Wildlife Federation and Defenders of Wildlife "establish a new, stricter burden on plaintiffs to establish with
specificity an injury-in-fact caused by a challenged government action." Portland Audubon Society, 998 F.2d at
707. See also Seattle Audubon Society, 998 F.2d at 702 (National Wildlife Federation and Defenders of Wildlife
did not "materially alter the standing principles which previously applied"). But see Public Interest Research Group
of New Jersey v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3rd Cir. 1990), cert. denied, 111 S.Ct. 1018 (concurring opinion cited National Wildlife Federation for the proposition that the Supreme Court was sending a "strong
signal" that it was "not, repeat not, totally relaxing its standing requirements in cases affecting the environment");
Greenpeace USA v. Stone, 748 F.Supp. 749 (D. Hawaii 1990), appeal dismissed as moot, 924 F.2d 175 (9th Cir.
1991) (National Wildlife Federation "appears to indicate more restrictive requirements must be met to establish
standing in NEPA cases. . . [and] heighten[s] the requirements for establishing actual injury. . .").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The determination of whether an injury is "imminent" has produced divergent results in cases where the injury
will not occur for many years or there is only a small risk of injury. On the one hand, the Eighth Circuit in Shain v.
Veneman, 376 F.3d 815, 818 (8th Cir. 2004) held that the injury that would occur to a landowner from the increased flooding that would be caused by a nearby facility in the event of a 100-year flood was not an "imminent"
injury. As the court stated: "If the possibility of a 100-year flood is remote in the abstract, the possibility the flood
will occur while they own or occupy the land becomes a matter of sheer speculation." 376 F.3d at 818. On the
other hand, the prospect of future contamination of a town's groundwater by a proposed nuclear waste repository
was held sufficiently imminent in Nuclear Entery Inst., Inc., v. EPA, 362 U.S. App. D.C. 204 (D.C. Cir., 2004). This
holding was reached despite the fact that "radionuclides escaping from the Yucca repository may not reach [the]
community for thousands of years."
In NRDC v. EPA, 440 F.3d 476 (D.C. Cir. 2006), NRDC challenged an EPA rule creating exemptions from a
treaty's ban on certain substances, including methyl bromide, that degrade the stratospheric ozone layer. NRDC
claimed that the EPA rule violates the treaty and the Clean Air Act. In support of its standing, NRDC submitted an
expert affidavit claiming, inter alia, that more than 10 deaths over a 145 year period would result from the additional emissions allowed by the EPA exemption. The court held that NRDC lacked standing. It expressed doubts
about these calculations, but even assuming they were correct found that the increased risk was "miniscule" for
the population of the United States (1 in 4.2 billion per person per year) and "infinitesimal" for NRDC's 490,000
members. The court noted that the "threatened" injuries supporting standing could include increased "risks" if
there was a "substantial probability" of the injury's occurrence, but more was required than "non-trivial" or "hypothetical" chance of injury. 440 F.3d at 483. The court acknowledged that several other courts of appeals have
suggested that an increase in probability itself constitutes an "actual or imminent" injury. See Baur v. Veneman,
352 F.3d 625, 634 (2d Cir. 2003); Cent. Delta Water Agency v. United States, 306 F.3d 938, 947-48 (9th Cir.
2002); Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir. 2000) (en banc);
see also Covington v. Jefferson County, 358 F.3d 626, 652 (9th Cir. 2004).
6. Are Procedural Injuries Sufficient for Standing?
Dictum in Lujan v. Defenders of Wildlife addressed the issue of standing for "procedural injuries." The court
suggested that plaintiffs living near a site for a proposed federal dam would have procedural standing to sue if the
licensing agency failed to prepare an EIS, even though the EIS may have no impact on the plans for the dam. 112
S. Ct. at 2142 n.7. Defenders of Wildlife required a plaintiff to show two essential elements for procedural standing: (1) that he or she is a "person who has been accorded a procedural right to protect [his or her] concrete interests . . . ." and (2) that the plaintiff has "some threatened concrete interest . . . that is the ultimate basis of [his or
her] standing." 112 S. Ct. at 2142 n.7, 2143 n.8.
Once those requirements are met, the court stated that "[t]he person who has been accorded a procedural
right to protect his concrete interests can assert the right without meeting all the normal standards for redressibility and immediacy." 112 S.Ct. at 2142 n.7. See also Covington v. Jefferson County, 358 F.3d 626, 641 (9th Cir.
2004) (the redressability and imminence of injury requirements of standing were "relaxed" because part of the
plaintiffs' claims were based on procedural irregularities); Center for Law & Education v. Dept. of Education, 396
F.3d 1152, 1156 (D.C. Cir. 2005). n37
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n37 In the Center for Law & Education case, the court held that it was not sufficient for the plaitniffs to establish
only the violation of a "procedural right." The plaintiffs must also show that this violation "has resulted in an invasion of their concrete and particularized interest." 396 F. 3d at 1159.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - However, in the Defenders of Wildlife case, Justice Scalia held that there was no "procedural injury" independently supporting standing. He stated that the procedural right granted by the citizens' suit provision was in
this instance merely "an abstract, self-contained, non-instrumental 'right' to have the executive observe the procedure as required by law" -- rather than something having a direct impact on the personal interests of the plaintiffs.
For that reason it was more in the nature of a widespread public grievance.
That the decision in Defenders of Wildlife applies largely to broad-scale, less discrete agency actions, is apparent from the decision in Moreau v. FERC, 982 F.2d 556 (D.C. Cir. 1992). There the court held that the opinion
in Defenders of Wildlife actually supported the plaintiffs' standing to challenge a pipeline built next to their property:
In so ruling, the court expressly distinguished cases such as this one, "where plaintiffs are seeking
to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs." The court listed the following as examples of that type of requirement: "The procedural
requirement for a hearing prior to denial of their license application, or the procedural requirement
for an environmental impact statement before a federal facility is constructed next door to them."
The court then responded to the application of the redressability requirement to NEPA actions.
Thus, under our case-law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an Environmental
Impact Statement, even though he cannot establish with any certainty that the Statement will cause
the license to be withheld or altered, and even though the dam will not be completed for many
years.
In Ctr. for Biological Diversity v. Lueckel, 417 F.3d 532, 534 (6th Cir. 2005), the court was faced with determining just how "relaxed" the other prongs of standing are in a procedural injury case. The plaintiffs claimed that
the Forest Service had failed to establish detailed river corridor boundaries and comprehensive management
plans for particular river segments as required by the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271 et seq. The
court held that the plaintiffs showing of an adequate causal chain when alleging non-compliance with procedural
requirements must contain at least two links: a link between the plaintiff's injury and some substantive decision of
the agency, and a link between that substantive decision and the agency's procedural omissions. The court found
that the first causal link was established by plaintiffs' showing that they suffered concrete injuries as a result of
logging and other activities allowed along several of the rivers in question, but had failed to establish the necessary causal link between those injuries and the Forest Service's failure to perform its statutory duties.
The court recognized that normal standards for redressability and immediacy are relaxed when a plaintiff has
asserted a "procedural right" and the plaintiffs need not show "with any certainty" that the establishment of detailed river corridor boundaries and comprehensive management plans would alter the Forest Service's decisions
with respect to logging activity within the designated river segment corridors. Nevertheless, the court was not persuaded that the plaintiffs have "set forth specific facts" showing that the establishment of detailed river corridor
boundaries and comprehensive management plans might appreciably alter the Forest Service's decision-making
with respect to logging activity within the designated river segment corridors. Accordingly, standing was denied.
In Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534 (9th Cir. 1993), the Ninth
Circuit considered a challenge to the decision of the Endangered Species Committee (known popularly as "the God
Squad") to grant an exemption from the requirements of the Endangered Species Act to the Bureau of Land Management for thirteen timber sales in western Oregon. Plaintiffs claimed that ex parte contacts between the White
House and members of the Committee tainted the decision-making process and violated the APA. Citing Defenders of Wildlife, the court concluded that the environmental groups had Article III standing, "if for no other reason
than that they allege procedural violations in an agency process in which they participated." Id. at 1537. n38
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n38 The court expressly declined to decide "whether a group which otherwise lacks Article III standing to contest
the substantive result of an agency action in federal court gains the ability to do so if it is allowed to participate in
the agency hearing." Id. at 1537 n.4 (emphasis added).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In Douglas County v. Babbitt, 48 F.3d 1495, 1501 (9th Cir. 1995), the court also upheld standing to challenge
a failure to comply with NEPA on the basis of a procedural injury, but only after raising a question "whether this
'procedural right' must be conferred by a statute, or whether the right arises because a concrete interest is threatened." Ultimately, the court required the former, and found such a procedural right in NEPA's specific provision
affording "local agencies which are authorized to develop and enforce environmental standards" the right to comment on the proposed federal action. 42 U.S.C. § 4332(2)(C). The court held that the plaintiff must still establish,
however, "a 'concrete interest' that underlies its procedural interest" which it found in the County's proprietary environmental interest in its lands adjacent to lands which were the subject of the federal decision. 48 F.3d at 1501.
In contrast, in Region 8 Forest Service Timber Purchasers Council v. Alcock, 993 F.2d 800 (11th Cir. 1993),
the Eleventh Circuit denied standing to a council of purchasers of national forest timber challenging actions taken
by the U.S. Forest Service to protect the red-cockaded woodpecker, despite the fact that the council had participated in the Forest Service's policy-making process. Region 8 involved alleged procedural violations of NEPA, the
Endangered Species Act, and the Forest Management Act in the adoption of the Forest Service's Woodpecker
strategy. Relying on Defenders of Wildlife, the court concluded that "the injuries asserted by the Council and the
Timber Companies to their rights to participation, information, and informed decision-making are generalized
grievances which do not state an Article III controversy." Id. at 810.
In Legal Environmental Assistance Foundation, Inc., v. EPA, 400 F.3d 1278, 1281-1282 (11th Cir. 2005), the
court denied standing for a suit alleging that the Title V permit programs in Florida and Alabama did not comply
with the Clean Air Act's requirements for judicial review of permits. The plaintiffs complained that the Florida and
Alabama programs only permitted judicial review to "aggrieved" parties rather than to any person who participated
in the public comment process. The court held that these contentions are insufficient to establish that plaintiff or
its members have suffered an injury in fact. As the court stated:
"If LEAF is aggrieved by a Title V permit action that is taken by Florida or Alabama, it is entitled to judicial review in the appropriate state court, in accordance with that state's laws. However, if LEAF is
not harmed in any way by a particular state Title V permit action, then it has suffered no injury from
its inability to obtain judicial review of that action."
At least one court has held, on the other hand, that the procedural right itself--the violation of which might give
rise to a concrete and personal injury--need not be personal to the plaintiff for him to have standing (although the
ultimate injury alleged must be personal to the plaintiff or an organization's members). Sierra Club v. Johnson,
436 F.3d 1269 (11th Cir. 2006). In the Johnson case, the Sierra Club's standing was based on an affidavit from a
member who had received notice of an administrative proceeding for approval of a power plant but who complained that the agency had failed to give the required notice to others. His testimony that the increased public
input resulting from a proper notice could have resulted in an administrative order to reduce the facility's emissions in his neighborhood was held sufficient to confer standing. The court concluded that "he has established
that the claimed violation of the procedural right caused a concrete injury in fact to an interest of the plaintiff that
the statute was designed to protect." 436 F.3d at 1278.
An interesting twist to the question of whether standing can be based on a "procedural injury" is presented in
the Supreme Court's decision in International Primate Protection League v. Administrator of Tulane Educ. Fund,
500 U.S. 72(1991). The court overruled the lower court's decision that plaintiffs lacked standing to challenge the
use of certain monkeys for federally funded medical experiments -- at least to the extent that the plaintiffs were
challenging the removal of the case to federal court. The court held that the plaintiffs had standing to challenge
the removal of the case because they had suffered the injury of the lost right to sue in the forum of their choice.
7. Are Administrative and Informational Injuries Sufficient?
Environmental organizations and trade associations sometimes attempt to rely on "administrative" or "informational" injuries to support their standing. With respect to administrative injuries, the results have varied. In Center for Law & Education v. Dept. of Education, 396 F.3d 1152, 1161-1162 (D.C. Cir. 2005), the court emphasized
that "[f]rustration of an organization's objections is the type of abstract concern that does not impact standing." In
that case, the court held that standing was not supported by allegations that alleged illegal agency action would
force the plaintiff organizations to change their lobbying strategies.
In Animal Legal Defense Fund v. Quigg, 932 F.2d 920 (Fed.Cir. 1991), the court first indicated that animal
rights organizations had not alleged any injury in fact from a general interest in preventing cruelty to animals, but
went on to hold that two other organizations, including the American Association for the Prevention of Cruelty to
Animals, escaped that problem by further alleging that they would need to increase their budget and enforcement
staffs by reason of the increased experimentation on animals they allege would be engendered by the new rule.
Such an allegation, held the court, was sufficient to establish injury in fact, but failed to meet the standard of causation.
Courts have considered the concept of "informational standing" also with varied results, although there appears to be increasing acceptance of this. In Foundation on Economic Trends v. Lyng, 943 F.2d 79 (D.C.Cir.
1991), the court discussed at length the concept of "informational standing" -- that organizations engaged in the
dissemination of environmental information can be injured by an agency's refusal to do a full environmental analysis of a program, thus depriving them of the ability to disseminate the information. In strongly worded dicta, the
court indicated that it would reject such a basis for standing under NEPA.
In Steel Company v. Citizens For A Better Environment, 118 S. Ct. 1003 (1998), Justice Scalia noted that the
Supreme Court had "not had occasion to decide whether being deprived of information that is supposed to be disclosed under [a statute] -- or at least being deprived of it when one has a particular plan for its use -- is a concrete
injury in fact that satisfies Article III." The question was not reached there because the court found that the plaintiff
lacked standing for its failure to demonstrate "redressability." This aspect of the court's opinion is discussed below.
Then, in Federal Election Comm v. Akins, 524 U.S. 11 (1998), the Supreme Court upheld standing for an "informational injury." In that case, a group of voters filed a complaint with the Federal Election Commission requesting that it order an organization, AIPAC, as a "political committee" which was involved in lobbying elected officials,
to make disclosures regarding its membership, contributions, and expenditures. The Supreme Court held that the
voters, whose views were often opposed to the organizations, had prudential standing because the Federal Election Campaign Act sought to address the asserted injury of failing to obtain relevant information. As the Court stated:
"There is no reason to doubt their claim that the information would help them (and others to whom
they would communicate it) to evaluate candidates for public office, especially candidates who received assistance from AIPAC, and to evaluate the role that AIPAC's financial assistance might play
in a specific election. Respondents' injury consequently seems concrete and particular."
Following Akins, informational injuries have been increasingly accepted as a basis of standing. In American
Canoe Ass'n. v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 542 (6th Cir. 2004), the court upheld standing to challenge a discharger's failure to comply with its monitoring and reporting requirements because 'the lack
of information deprived [the plaintiff's members] of the ability to make choices about whether it was "safe to fish,
paddle and recreate in this waterway.'
The court also found that the plaintiff environmental organizations had standing for an informational injury
based on their allegations that the defendants' monitoring and reporting violations affected the plaintiff organizations' efforts to "research the compliance status of Kentucky dischargers. . .and to report the results of that research to [their] members; to propose legislation. . .' and to bring litigation to prevent violation of the discharge
limitations in the permit and thereby protect the waters affected by the facility's discharge."
The court in American Canoe considered whether Akins required some additional "plus" to support an informational injury beyond just the fact that the required information was withheld by the defendant. 389 F.3d at 545546. The court held that nothing more should be required, but alternatively that the plaintiff organizations had
shown a "concrete and particularized" need for the information sufficient for any additional "plus" in Akins. Id. at
546. The defendants monitoring and reporting violations "prevent these organizations from performing their daily
operations." Id.
8. What Kind of Injury Is Necessary for Equitable Relief?
In Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995), the court cited Lujan v. Defenders of Wildlife
for the proposition that more than past injury was required to maintain a claim for "forward-looking relief." In that
case, the losing bidder for a government contract sued federal officials on the ground that the equal protection
clause was violated by standard contract terms which gave preferences to small, disadvantaged businesses. The
plaintiff sought declaratory and injunctive relief against future use of those contract terms. The court distinguished
claims for damages, citing Los Angeles v. Lyons, 461 U.S. 95 (1983) (the fact of past injury, "while presumably
affording [the plaintiff] standing to claim damages. . .does nothing to establish a real and immediate threat that he
would again" suffer similar injury in the future.). The Supreme Court upheld standing because the evidence indi-
cated that the kind of contracts plaintiff bid on were likely to be let in the future, plaintiff was likely to bid on them,
and must compete with small, disadvantaged businesses for such contracts.
9. What Causation is Required in Citizens' Suits?
The above cases deal mainly with what kinds of injuries must be sustained by what kinds of interests in order
for standing to exist. The requirements of "causation" and "redressability" must also be met. The cases dealing
with these requirements in the environmental area are usually so dependent on their particular facts that they
provide little general guidance. Perhaps the principal question is how literally these requirements are to be construed. For causation, this is a particularly important issue in citizen suits. n39
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n39 Another hurdle in citizen suits is the typical provision which precludes a citizen suit when an agency enforcement action is already underway. See, e.g., Toxic Substances Control Act, 15 U.S.C. § 2619(b)(1)(B); Endangered
Species Act, 16 U.S.C. § 1540(g)(2); Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. § 1415(g)(2);
Clean Water Act, 33 U.S.C. § 1365(b)(1)(B). In Friends of the Earth v. Consolidated Rail Corp., 787 F.2d 57 (2d Cir.
1985), the Second Circuit Court of Appeals addressed this limitation as applied to the Clean Water Act. Recognizing that section 505(b)(1)(B) of the Clean Water Act operates to preclude a citizen suit where an enforcement action has been initiated and is being diligently prosecuted in court by EPA or a state, the court found that the scope
of the preclusion is narrow. Based on the legislative history and language of the Clean Water Act, the court concluded that administrative enforcement actions under the Act did not preclude citizen suits. 787 F.2d at 63.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - For example, does the plaintiff suing to enjoin the discharge of pollutants into a river have to demonstrate not
only that he uses that water body for some purpose but also that the particular concentration of pollutants being
discharged has the potential to cause some injury to his health or particular river resources which he uses? The
answer may depend on the statute which the plaintiff seeks to enforce, but to construe the element of "causation"
too literally would require the plaintiff in effect to prove the merits of his case before his standing could be established.
The Supreme Court addressed the issue of standing in such citizen suits in Friends of the Earth, Inc. v.
Laidlaw Environmental Services, Inc. 120 S. Ct. 693 (2000). Among other things, the Supreme Court held that
federal courts may not "raise the standing hurdle higher than the necessary showing for success on the merits in
an action." 528 U.S. at 181. In order to appreciate the significance of that decision it is worth reviewing the decisions that preceded it. Prior to Laidlaw, few cases provide a straightforward answer to the question, but in the example posed, numerous cases have held that standing is met where the plaintiff uses or resides near the affected
waterway. n40 In one citizen suit under the Clean Water Act, the defendant argued that "while the plaintiffs have
set forth that they are injured by the general pollution of the [affected waterway], they have not shown that these
injuries are caused specifically by the alleged violations of [the defendant]." n41 The district court found "this argument to be unpersuasive" because if adopted it would "overly burden . . . the plaintiffs." n42 The court reasoned
that such an extreme test for standing would undermine the citizen suit and strict liability provisions of the Clean
Water Act.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n40 See, e.g., Sierra Club v. Aluminum Co. of America, 585 F. Supp. 842, 848-849 (N.D.N.Y. 1984); Loveladies
Property Owners' Ass'n., Inc. v. Raab, 430 F. Supp. 276, 280 (D.N.J. 1975), aff'd, 547 F.2d 1162 (3d Cir. 1976);
Pymatuning Water Shed Citizens for a Hygienic Environment v. Eaton, 506 F. Supp. 902, 903 (W.D.Pa. 1980),
aff'd, 644 F.2d 995 (3d Cir. 1981); State of Michigan v. City of Allen Park, 501 F. Supp. 1007, 1013 (E.D.Mich.
1980); Montgomery Environmental Coalition v. Fri, 366 F. Supp. 261, 264 (D.D.C. 1973).
n41 SPIRG v. Tenneco Polymers, 602 F. Supp 1394 (1984), Slip op. at 8 (emphasis added).
n42 Slip op. at 8-9.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In another case under the Clean Water Act mentioned above, the District Court had stated that the plaintiffs
could establish causation "merely by showing violations of the discharge permit." Student Public Interest Group of
New Jersey, Inc. v. P.D. Oil & Chemical Storage, Inc., 627 F.Supp. 1074 (D.N.J. 1986). The Court of Appeals held
that such a test was not sufficient to satisfy the standing requirements, but that plaintiffs do not need to show "to
a scientific certainty that defendant's effluent, and defendant's effluent alone, caused the precise harm suffered
by the plaintiffs." Public Interest Research Group of New Jersey v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3rd
Cir. 1990), cert. denied, 111 S.Ct. 1018. The court held that plaintiffs need only show that there is a connection
between the harm that has been suffered and the defendant's violation of the permit. In that case, it was enough
that plaintiffs alleged harm to their enjoyment and use of a park along the waterway, some declarants specifically
mentioning an unattractive oily film on the water, and the showing that the defendant's discharge was in excess of
what its permit allowed for oil.
Excerpts from depositions of the people who had submitted declarations submitted for the plaintiff organization were quoted at some length in the concurring opinion. The declarants' answers revealed that they only had a
very tenuous relationship with the body of water at question. The concurring justice concluded that -"Each member/plaintiff complained of pollution in general. . . .Even if I concede that the individual
plaintiffs were injured by the pollution in the [waterway], no individual plaintiff was able to say that
in this highly polluted waterway, the specific condition that was the object of his or her complaint
was caused by Powell Duffryn."
The plaintiff must still be able to establish the causal pathway by which injury could occur. See Center for Auto
Safety v. National Highway Traffic Safety Administration, 793 F.2d 1322 (D.C. Cir. 1986).
Several cases subsequent to Powell Duffryn have applied the relatively relaxed standard of causation under
the Clean Water Act articulated in that case. In Public Interest Research Group of New Jersey v. Yates Industries,
Inc., 757 F.Supp. 438 (D.N.J. 1991) the defendant asserted the plaintiffs lacked standing because of the "tenuous
links" between the defendant's alleged acts and the purported injuries from defendants' discharge into an unnamed tributary. Plaintiffs only alleged that they would use waters downstream from that tributary more often, and
enjoy it more, if the water was not polluted. The court completely rejected the concept that a discharger could be
insulated from suit merely because it discharges into a tributary of the waters which plaintiffs allege an interest in.
Citing Powell Duffryn, the court held that the plaintiffs only need to show that the defendant "(1) discharges some
pollutant in concentrations greater than allowed by its permit (2) into a waterway in which the plaintiffs have an
interest that is or may be adversely affected by the pollutant and that (3) this pollutant causes or contributes to
the kinds of injuries alleged by the plaintiffs." Id. at 443. See also, American Canoe Ass'n v. City of Louisa Water &
Sewer Comm'n, 389 F.3d 536, 542-543 (6th Cir. 2004); Public Interest Research Group of New Jersey v. Star Enterprise, 771 F.Supp. 655 (D.N.J. 1991); Natural Resources Defense Council v. Loewengart & Co. Inc., 776
F.Supp. 996 (M.D.PA. 1991).
In Bennett v. Spear, 117 S.Ct. 1154 (1997), the Supreme Court considered the causation requirement in the
context of the citizen's suit provisions of the Endangered Species Act. In that case, the government argued that the
plaintiff irrigation districts had suffered no injury in fact that was traceable to the Fish & Wildlife Service's Biological Opinion regarding the endangered species impacted by the Bureau of Reclamation's operation of reservoirs
from which the irrigation districts took water. The government noted that whether or not the irrigation districts
would suffer any injury traceable to this action depended on whether or not the Bureau of Reclamation ultimately
followed the Fish & Wildlife Service's opinion by maintaining certain minimum water levels in the reservoirs, and in
the succeeding allocations of water reduced those available to the plaintiffs or their members.
Justice Scalia dealt somewhat lightheartedly with these contentions, largely on the basis that the case was
still at a pleading stage:
Given petitioners' allegation that the amount of available water will be reduced and that they will be
adversely affected thereby, it is easy to presume specific facts under which petitioners will be injured -- for example, the Bureau's distribution of the reduction pro rata among its customers. The
complaint alleges the requisite injury in fact.
With respect to the government's further argument that the proximate cause of petitioners' injury was an as yet
unidentified decision by the Bureau, rather than the Fish & Wildlife Service, the court distinguished its prior ruling
in Defenders of Wildlife that the injury complained of cannot be "the result of the independent action of some third
party not before the court." The court stated that "does not exclude injury produced by determinative or coercive
effect upon the action of someone else." It further noted that the Fish & Wildlife Service's Biological Opinion in
reality has a "powerful coercive affect on the action agency" and "alters the legal regime to which the action agency is subject."
In Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 120 S.Ct. 693 (2000), the Supreme Court
specifically considered the requisites for standing in a citizen suit under the Clean Water Act alleging violations of
an NPDES permit. The Plaintiffs alleged that a defendant's wastewater discharges into a river violated the limitations in its NPDES permit. In this case, the Supreme Court was not faced with the question of whether plaintiffs
alleging their members' use of the river must also demonstrate that the defendant's discharges had specifically
caused injury to the particular river resources they used. In fact, although the District Court had found that defendant's discharges did violate the permit, it had also held that the discharges produced no harm to the environment. The Supreme Court held that the relevant showing for Article III standing was not "injury to the environment
but injury to the plaintiff." 120 S. Ct. at 704. The court found sufficient injury for standing in the testimony of the
plaintiffs' members that they had ceased use of the river because of their concern that the defendant's discharges
were polluting the river and causing a depreciation in the value of one of the members' homes.
In the wake of Laidlaw, the Fourth Circuit held that an affiant sufficiently alleged injury in fact under the Clean
Water Act when the defendant's alleged NPDES permit violations threatened the environmental quality of waters
adjoining the affiant's property, although the plaintiff environmental organizations had not produced evidence of
actual environmental degradation. Friends of the Earth v. Gaston Copper Recycling Corp., 204 F.3d 149, 159-61
(4th Cir. 2000). As the court explained, to require actual evidence of environmental harm, rather than an increased risk based on a violation of the statute, misunderstands the nature of environmental harm, and would
undermine enforcement of the Clean Water Act. See also Ocean Advocates v. Corps of Engineers, 361 F.3d 1108,
1120 (9th Cir. 2004) ("'an increased risk of harm can itself be injury in fact for standing,' and nothing necessitates
a showing of existing environmental harm"); Covington v. Jefferson County, 358 F.3d 626, 638 (9th Cir. 2004).
Similarly, following Laidlaw, the Third Circuit upheld standing under the citizen suit provisions of RCRA, despite
the fact that plaintiffs had alleged only that they recreated "near." "next to" or "along" the river adjacent to the defendant's polluting site. Interfaith Community Org. v. Honeywell Int'l, Inc. 399 F.3d 248, 257 (3d Cir. 2005). See
also, American Canoe Ass'n v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 541-542 (6th Cir. 2004) (allegation held sufficient that plaintiff fished 12 miles downstream from challenged discharges and would like to
canoe in the area of the discharge).
There appears to be some disagreement between the Courts of Appeals as to whether a plaintiff alleging a
violation of the Clean Water Act has standing to sue for a defendant's monitoring and reporting violations absent
standing to sue for a defendant's discharge violations. Compare Friends of the Earth, Inc. v. Crown Central Petroleum Corp., 95 F.3d 358, 362 (5th Cir. 1996) ("Because FOE's members do not have standing to sue for La Gloria's discharge violations, they do not have standing to sue for the reporting violations.") with Public Interest research Group v. Magnesium Elektron, Inc., 123 F.3d III, 124 (3rd Cir. 1997) ("Because we think that it is at least
possible that some plaintiff in the future might allege a specific and concrete injury arising from a defendant's failure to monitor and report its effluent discharges, we will not adopt the Fifth Circuit's bright line rule.") See also Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1113 (4th Cir. 1988).
Finally, judicial review of the terms of a general NPDES permit as issued by EPA under the Clean Water Act
may be treated differently than the above cases indicate, where the review is detached from any particular discharger's compliance with that permit. In Texas Indep. Producers & Royalty Owners Ass'n v. EPA, 410 F.3d 964,
967 (7th Cir. 2005), the court held that the Natural Resources Defense Council lacked standing to challenge certain aspects of EPA's general NPDES permit for construction storm water discharges. NRDC alleged that its members swim and engage in other recreational activities in water bodies directly affected by pollution from construction activities subject to the General Permit. The court held that NRDC must demonstrate its members suffered an
injury from the General Permit scheme, but "the only potential injury to its members is one that could occur in the
future should a contractor violate the terms of the General Permit," and "the NRDC has presented no evidence of a
discharge authorized by the General Permit that violates the terms of the CWA."
10. How Literal is the Redressability Requirement?
Arguably, the redressability requirement should not be interpreted too literally. For example, no court has ever
suggested that the opponents of a project who sue to compel an environmental impact statement are required to
show that the project will in fact be rejected if an EIS is prepared. n43 A similar argument was dismissed in Watt v.
Energy Action Educational Foundation. n44 There, the State of California claimed that the Secretary of the Interior
violated the Outer Continental Shelf Lands Act (OCSLA) by failing to consider alternative methods of bidding for
federal offshore oil and gas. OCSLA mandates a fair return to the state for its resources affected by the federal
leasing scheme. The Secretary contended that California lacked standing because the remedy sought by the state,
consideration of alternative bidding systems, could not guarantee that the Secretary would actually adopt a system more beneficial to California. The court rejected this argument and held that the relief requested would abate
the state's alleged injury: the Secretary's breach of his duty to determine through experiment which bidding system
works best.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n43 See e.g., City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) ("For purposes of Article III standing, we do not require a plaintiff to demonstrate that a procedurally proper EIS will necessarily protect his or her
concrete interest in the park"). Similarly, a plaintiff need not show that a court's invalidation of a federal land exchange agreement would necessarily mean that the agreement woud not be renegotiated. See Desert Citizens
Against Pollution v. Bisson, 231 F.3d 1172, 1178 (9th Cir. 2000). Indeed, in Moreau v. FERC, 982 F.2d 556 (D.C.
Cir. 1992), the court held that the "redressibility" requirement had been met, despite the fact that the pipeline
project under challenge for adjoining landowners had already been built and that it would be impractical to order it
removed. The court noted that the pipeline sponsor's haste to build the pipeline while the permits were under challenge should not be allowed to vitiate petitioner's standing. The court also decided that the case was not moot.
n44 454 U.S. 151, 161, 102 S.Ct. 205, 70 L.Ed.2d. 309(1981).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991), involving the transfer of authority over National Airport from the Department of Transportation to a compact agency, the court held that airport
residents had standing to challenge Congress' creation of a Board of Review, composed of its own members and
with veto power over the decisions of the compact agency. The plaintiffs complained about the adoption of a master plan by the compact agency providing for an increase in new facilities at the airport. The court held that the
increased noise, pollution and accidents that plaintiffs claimed they would suffer were "fairly traceable" to the
Board's veto power because knowledge of that veto power had in the court's view undoubtedly influenced the
compact agency when it had drafted the master plan. The court also held that for this reason invalidation of the
veto power would redress plaintiffs' grievances. n45
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n45 In Colorado Environmental Coalition v. Wenker, 353 F.3d 1221, 1240-1242 (10th Cir. 2004), the court upheld standing to challenge appointments to a Bureau of Land Management advisory committee by a plaintiff
whose application to serve on the committee had been rejected. The court held that the Federal Advisory Committee Act's requirement of a "fair membership balance" provided an adequate standard for judicial review and that
the denial of a fair opportunity to compete for the appointment was sufficient for standing.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - A similarly relaxed view of redressability is also found in the Supreme Court's decision in Franklin v. Massachusetts, 112 S.Ct. 2767 (1992). In that case, the State of Massachusetts challenged the method by which the
1990 census counted federal employees serving overseas, claiming that the allocation of overseas military personnel to the state designated in their personnel files as their "home of record" altered the relative state populations enough to shift a Representative from Massachusetts to Washington State. Over a vigorous dissent by Justice Scalia, the majority held that Massachusetts had standing because its injury was "likely to be redressed by
declaratory relief." The court found that the "redressability" requirement was satisfied because "it is substantially
likely that the President and other officials would abide by an authoritative interpretation of the census statutes
and constitutional provision by the District Court, even though they would not be directly bound by such a determination." 120 L.Ed.2d 636, 652. A similar result was reached in Utah v. Evans, 536 U.S. 452 (2002), based on the
Court's interpretation that the underlying statute would allow for a reallocation of representatives between states
if it was established in court that an error in the census method had occurred.
As noted above, Justice Scalia's opinion on redressability in the Defenders of Wildlife case, while failing to
garner support from a majority of the court, signals the direction with the greatest ramifications for the law of
standing. Thus, as an alternative to his holding that the plaintiffs had failed to show injury, he also concluded that
they had failed to demonstrate redressability. As signaled in the National Wildlife Federation case, he again took
issue with the notion that challenges to broad agency programs were appropriately entertained in the courts. As
he states: "Instead of attacking the separate decisions to fund particular projects allegedly causing them harm,
the respondents chose to challenge a more generalized level of government action (rules regarding consultation),
the invalidation of which would affect all overseas projects." While recognizing that "this programmatic approach
has obvious practical advantages," he noted that the lawsuit would not in his view redress the plaintiffs' grievances since they had named only the Secretary of the Interior and not the funding agencies. Therefore, there could be
no redress unless those agencies were bound by the Secretary's regulation, "which is very much an open question." But see, National Recycling Coalition, Inc. v. Reilly, 884 F.2d 1431, 1434 (D.C. Cir. 1989) (since the guidelines "will affect EPA's own procurement decisions, it is irrelevant that other procurement agencies have not yet
adopted them."); National Recycling Coalition v. Browner, 984 F.2d 1243 (D.C. Cir. 1993). In that context he determined that it was not appropriate to decide this legal issue as a predicate to determining whether or not the
plaintiffs had standing in this regard.
In Steel Company v. Citizens For A Better Environment, 118 S. Ct. 1003 (1998), Justice Scalia was able to get
enough votes from other members of the court to install his stringent view of the "redressability" requirement. The
case was a citizen suit brought under the Emergency Planning and Community Right-To-Know Act of 1986
(EPCRA), 42 U.S.C. § 11046(a)(1), which, inter alia, requires users of hazardous chemicals to file annual "emergency and hazardous chemical inventory forms" and "toxic chemical release forms." After the plaintiff sent the required 60 day notice of its intent to sue, alleging that the defendant had failed to file the required forms for the
previous eight years, the defendant promptly filed all of the overdue forms with the relevant agencies. When the
suit was filed, the defendant then filed a motion to dismiss, contending that, because its filings were up to date
when the complaint was filed, the court had no jurisdiction to entertain a suit for a present violation; and that, because EPCRA does not allow suit for a purely historical violation, plaintiff's allegation of untimeliness in filing was
not a claim upon which relief could be granted.
In the opinion written by Justice Scalia, the court held that the Article III standing issue must be addressed
first. Standing was denied because none of the relief prayed for in the complaint "would serve to reimburse [plaintiff] for losses caused by the late reporting, or to eliminate any effects of that late reporting upon [plaintiff]."
The request for a declaratory judgment that petitioner violated EPCRA was insufficient because "[t]here being
no controversy over whether petitioner failed to file reports, or over whether such a failure constitutes a violation,
the declaratory judgment is not only worthless to respondent, it is seemingly worthless to all the world."
Since the civil penalties are payable to the United States Treasury, the court held that "respondent seeks not
remediation of its own injury -- reimbursement for the costs it incurred as a result of the late filing -- but vindication
of the rule of law -- the 'undifferentiated public interest' in faithful execution of EPCRA." It was not enough that "a
suitor may derive great comfort and joy from the fact that the United States Treasury is not cheated, that a wrongdoer gets his just deserts, or that the nation's laws are faithfully enforced." As the court stated, "that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury."
Nor was recovery of the "investigation and prosecution" costs "authorized by Section 326(f) of EPCRA a sufficient remedy to support standing, because "a plaintiff cannot achieve standing to litigate a substantive issue by
bringing suit for the cost of bringing suit." The benefit to the plaintiff must be something other than the "reimbursement of costs that are a byproduct of the litigation itself."
Plaintiff's request for injunctive relief requiring the defendant to allow plaintiff to inspect petitioner's facility
and records, and compelling defendant to provide plaintiff copies of EPA compliance reports "cannot conceivably
remedy any past wrong but is aimed at deterring petitioner from violating EPCRA in the future." Although the court
recognized that this objective was "remedial" for Article III purposes, when "threatened injury" is the subject of the
complaint, there was no allegation in the complaint of "a continuing violation or the imminence of a future violation." Without these allegations, "[n]othing supports the requested injunctive relief except respondent's generalized interest in deterrence, which is insufficient for purposes of Article III." The court rejected the argument of the
government as amicus that there is a presumption of future injury when the defendant has voluntarily ceased its
illegal activity in response to litigation. It was an "unacceptable stretch to call the presumption into service as a
substitute for the allegation of present or threatened injury upon which initial standing must be based," since "the
allegations of future injury must be particular and concrete."
In a concurring opinion Justice Stevens criticized this "mechanistic application" of the redressability requirement. Justice Scalia rejected Justice Stevens' argument that all prior Supreme Court decisions denying standing
on redressability grounds were challenges to government action or inaction or were decided because the relief
required action by a party not before the Court. As Justice Scalia stated: "Suits that promise no concrete benefit to
the plaintiff, and that are brought to have us 'determine questions of law in thesis' . . .are most often inspired by
the psychological smart of perceived official injustice, or by the government-policy preferences of political activists." n46
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n46 If anyone believes that Justice Scalia's standing decisions have singled out environmental groups for ill treatment, an opinion by him issued the day before Steel Company will dispel that misconception. In Spencer v. Kemna, 118 S. Ct. 978 (1998), the court held that the plaintiff had lost his standing to challenge the revocation of his
parole because he had served his sentence on the revoked parole. Justice Scalia said that the fact that his parole
revocation could be used to his detriment in a future parole proceeding is "merely a possibility rather than a certainty or a probability," or that it could used to increase his sentence in a future sentencing proceeding is contingent on petitioner's violating the law, being caught and convicted, or that it was speculative that the parole revocation could be used to impeach him should he appear as a witness in future proceedings, or that it could be used
directly against him should he appear as a defendant in a criminal proceeding.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In Friends of the Earth v. Laidlaw Environmental Services, Inc., 120 S. Ct. 693, 707 (2000), the holding in the
Steel Company case was limited to the situation where the violations had abated by the time of the suit. In
Laidlaw, the District Court found that the defendant had been in substantial compliance with its permit since a
month after the lawsuit was filed. 120 S. Ct. 703. As the Supreme Court stated, Steel Company held that a private
plaintiff "may not sue to assess civil penalties for wholly past violations, but our decision in that case did not reach
the issue of standing to seek penalties for violations that are ongoing at the time of the complaint and that could
continue into the future if undeterred." 120 S. Ct. at 708. In Laidlaw, citizens groups sought civil penalties for violations of a Clean Water Act NPDES permit that continued after the suit was filed. However, as discussed infra, the
Supreme Court countenanced the possibility that the cessation of the violations after the suit was filed could moot
the claim for civil penalties.
In Laidlaw, the majority opinion by Justice Ginsburg rejected the argument that a citizen plaintiff can never
have standing to seek civil penalties because they are paid to the government:
"It can scarcely be doubted that, for a plaintiff who is injured or faces the threat of future injury due
to illegal conduct ongoing at the time of suit, a sanction that effectively abates that conduct and
prevents its recurrence provides a form of redress. Civil penalties can fit that description. To the extent that they encourage defendants to discontinue current violations and deter them from committing future ones, they afford redress to citizen plaintiffs who are injured or threatened with injury as
a consequence of ongoing unlawful conduct." 120 S. Ct. at 706-7.
The Court noted, without further explanation, "there may be a point at which the deterrent effect of a claim for civil
penalties becomes so insubstantial or so remote that it cannot support citizen standing." Id. at 707.
Justice Scalia's dissent expressed the disappointment that the majority was not willing to take the next step
after Steel Company and hold that private plaintiffs can never have standing to seek civil penalties paid to the
government. More generally, he complained that "permitting citizens to pursue civil penalties payable to the Federal Treasury, . . .does not provide a mechanism for individual relief in any traditional sense, but turns over to private citizens the function of enforcing the law." 120 S. Ct. at 719. n47
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n47 At first blush, Justice Scalia's statements in dissent appeared to explain the Court's invitation to the parties in
a suit brought under the federal False Claims Act to file supplemental briefs addressing the question, "Does a private party have standing under Article III to litigate claims of fraud upon the government?" Vermont Agency of
Natural Resources v. United States, 120 S. Ct. 523 (1999). However, it was Justice Scalia himself who authored
the majority opinion in that case confirming that a private party does have standing. 58 U.S.L.W. 4399 (May 22,
2000). His opinion rejected the notion that standing could be predicated solely on the injury suffered by the United
States because "the Art. III judicial power exists only to redress or otherwise protect against injury to the complaining party." However, the plaintiff was in effect treated as an "assignee" of the federal government's claim, and an
"adequate basis for the relator's suit for his bounty is to be found in the doctrine that the assignee of a claim has
standing to assert the injury in fact suffered by the assignee." This conclusion was confirmed in the Court's view by
the long tradition of qui tam actions in England and the American Colonies.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - Following Laidlaw, in American Canoe Ass'n v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 543 (6th
Cir. 2004), the court held that "the voluntary cessation of the allegedly unlawful behavior is generally insufficient
to moot a case determining the legality of that behavior." In that case, the court concluded that defendants had
not shown that their renovation project would make it "reasonably likely that the discharge violations would not
recur," and that otherwise "this hypothetical situation tells nothing about the likelihood that the defendants' violations of the monitoring and reporting requirements of the discharge permit would recur." 389 F.3d at 543-544.
11. Does Standing Exist to Compel Congressional Action?
Some cases have dealt with the question of whether the "redressability" requirement for standing is satisfied
by plaintiffs who sue to compel submission of reports or legislative proposals to Congress but who cannot establish that Congress will in fact take action based on those reports or proposals which would address plaintiff's problems. In Covelo Indian Community v. Watt, standing was upheld, over a strong dissent. n48 One factor which was
significant in the D.C. Circuit's decision in Covelo Indian Community, and thus significant to the analysis of similar
cases, was the court's emphasis on the existence of a statutory right to submission of a legislative proposal. Recognizing that the statutory right to submission of a proposal was a limitation on the future exercise of executive
branch discretion, the court held that strict imposition of the redressability requirement would thwart the recognized statutory aim. The court implied that in the absence of a statutory duty to make a submission to Congress, it
would strictly impose the redressability requirement.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n48 551 F. Supp. 366 (D.D.C. 1982), aff'd, Docket # 82-2377 (D.C. Cir. Dec. 21, 1982), vacated as moot, Docket
# 82-2377 (D.C. Cir. February 1, 1983). See also, Sierra Club v. Edwards, No. 81-1368 (D.D.C., decided April 18,
1983) (upholding standing).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - However, the D. C. Circuit's decision in Covelo Indian Community was subsequently vacated as moot, and in
Natural Resources Defense Council, Inc. v. Hodel, 19 ELR 20386, 20402 n.31 (D.C. Cir. 1988), the court indicated that it could no longer be cited as binding precedent. In that case, the court declined to review the Agency's
response to a Congressional reporting requirement because "in the absence of a Congressional directive for judicial review of claims by non-congressional parties, this issue seems to us quintessentially within the province of
the political branches to resolve as part of their ongoing relationships." 19 ELR at 20403. See also Nixon v. United
States, 113 S. Ct. 732, 122 L. Ed. 2d 1 (1993).
12. When is Judicial Review Available Under the APA?
In Association of Data Processing Service Organizations v. Camp, n49 the Supreme Court emphasized that
environmental interests were entitled to assert standing under the APA. In particular, the court explained that "the
Administrative Procedure Act grants standing to a person 'aggrieved by agency action within the meaning of a relevant statute'" and that the interest sought to be protected by the complainant "may reflect 'aesthetic, conservational and recreational,' as well as economic values." n50
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n49 397 U.S. 150, 153-154 (1970).
n50 Citing Scenic Hudson Preservation Conference v. F.P.C., 354 F.2d 608, 616 (1965).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - To avail itself of judicial review under the APA, a plaintiff must first show that no other "statutes preclude judicial review" and that the agency action sought to be reviewed is not "committed to agency discretion by law." n51
The parties that can seek review under the APA are defined as follows: "A person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." n52 A party is a person aggrieved "within the meaning of a relevant statute" if the
party has (1) alleged that it will sustain "injury in fact" from the agency action and (2) shown that the interests it
seeks to protect are "arguably" within the zone of interests that the relevant statute was enacted to protect. n53
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n51 5 U.S.C. § 701.
n52 5 U.S.C. § 702.
n53 However, the fact that a person was a "party" to an agency proceeding of which review is sought does not in
itself confer standing. Pittsburgh & West Va. R.R. Co. v. United States, 281 U.S. 479 (1930); Center for Auto Safety
v. National Highway Traffic Administration, 17 ELR 20039, 20043 n.41 (D.C. Cir. 1986).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - It bears emphasis that the interests of the plaintiff need only "arguably" be within the zone of interest. As the
court stated in National Credit Union Administration v. First National Bank & Trust Co., 118 S. Ct. 927 (1998), "the
Court does not ask whether Congress specifically intended the statute at issue to benefit the plaintiff. . . .Instead,
it discerns the interests 'arguably . . . to be protected' by the statutory provision and inquires whether the plaintiff's
interests affected by the agency action in question are among them." A court should deny standing under the
"zone of interest" test only "if the plaintiff's interests are so marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Clarke v.
Secs. Indus. Ass'n., 479 U.S. 388, 399 (1987).
13. How is the "Zone of Interest" Test Applied?
Is it limited to APA cases? Prior to the decision in Bennett v. Spear, 117 S.Ct. 1154 (1997), there was a split
in the Circuits regarding whether the prudential standing rule known as the "zone of interest" test applies only to
cases seeking review under the APA or applies also to "citizen suits" expressly authorized by statute to be brought,
for example, by "any person." In suits brought under the citizen suit provision of the Endangered Species Act, the
Ninth and D.C. Circuits had held that the test is applicable. n54 In contrast, the Eighth Circuit had concluded that
ESA's citizen-suit provision necessarily abrogated any zone of interests test. n55
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n54 Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995), rev'd sub nom Bennett v. Spear, supra; State of Idaho By and
Through Idaho Public Utilities Commission v. ICC, 35 F.3d 585, 592 (D.C. Cir. 1994); Humane Society of the United States v. Hodel, 840 F.2d 45 (D.C. Cir. 1988); National Audubon Society v. Hester, 801 F.2d 405, 407 (D.C.
Cir. 1986).
n55 See Defenders of Wildlife v. Lujan, 85 1 F.2d 1035, 1039 (8th Cir. 1990), opinion after remand, 911 F.2d
117 (8th Cir. 1990), rev'd on other grounds sub nom., Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d
351, 112 S.Ct. 2130 (1992).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In Bennett v. Spear, 117 S.Ct. 1154 (1997), the Supreme Court considered whether the "zone of interest" test
applies to citizen suit claims under the Endangered Species Act. The court noted that the zone of interest test had
initially been applied to suits under the APA, but that later cases had applied it also in other contexts. Ultimately,
the court decided that the question of whether the zone of interest test applied under the citizen suit provision in
the Endangered Species Act was determined by whether that provision "negates the zone of interest test (or, perhaps more accurately, expands the zone of interest)." Because the citizen suit provision conferred standing on
"any person" the court found that even economic interests fell within the "zone of interest" that the statute served.
In two Ninth Circuit cases, the "zone of interest" test has been applied in determining whether the plaintiff had
standing to challenge a municipal ordinance as a violation of the Commerce Clause. In Individuals for Responsible
Government, Inc. v. Washoe County, 110 F.3d 699 (9th Cir. 1997), the court held that waste generators lacked
standing to challenge an ordinance that required that they allow an exclusive franchisee to haul their garbage rather than self hauling. Although they met the Article III requirements for standing, their Complaint did not "fall within the zone of interests to be protected or regulated by" the Commerce Clause because being forced to pay unwanted garbage fees was not related to concerns about states erecting barriers against interstate trade. 110 F.3d
at 703. See also On the Green Apartments L.L.C. v. City of Tacoma, 241 F.3d 1235 (9th Cir. 2001). In contrast, in
National Solid Waste Mgmt. Ass'n v. Pine Belt Regional Solid Waste Mgmt. Auth., 389 F.3d 491, 501 (5th Cir.
2004), The Fifth Circuit held that challenges by waste handlers to flow control ordinances for landfills fell within
the zone of interests protected by the Commerce Clause's prohibitions on excessive burdens on interstate commerce. n56
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n56 In City of Sausalito v. O'Neill, 386 F.3d 1186 (9th Cir. 2004), the Ninth Circuit held that the plaintiff city fell
within the zone of interests protected by the federal Coastal Zone Management Act, the Marine Mammal Protection Act, Migratory Bird Treaty Act, and other federal statues.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - What is the "relevant statute"? In Lujan v. National Wildlife Federation, supra, 110 S.Ct at 3187, the Supreme
Court stressed that in considering claims brought under the APA, courts must pay particular attention to just what
constitutes the "relevant statute" for purposes of the "zone of interest" test. It stated that "the relevant statute. . .
is the statute whose violation is the gravamen of the complaint." The court addressed this issue further in Air Courier Conference of America v. American Postal Workers Union, 111 S.Ct. 913 (1991). The Supreme Court reversed
a circuit court ruling that postal workers were within the zone of interests covered by the Private Express Statutes
(PES) which allowed certain types of mail delivery by private carriers. The plaintiffs had maintained that if the entire 1970 Postal Reorganization Act was considered, the employees were within the zone of interest because one
of the express purposes of that Act was to stabilize labor/management relations. Id. at 920. The court rejected
this interpretation, stating that none of the provisions of the PES "has any integral relationship with the labormanagement provisions" of the broader statute. Id. at 921. The court held that if the plaintiffs' interpretation of the
"relevant statute" were accepted it "could deprive the zone-of-interests test of virtually all meaning." Id.
In Bennett v. Spear, supra, the court stated that the zone of interest was to be determined not by the citizen
suit provision itself but by the substantive provisions of the statute which serve as the basis of the complaint.
Moreover, the court stated that the zone of interest was to be determined not by reference to the "overall purposes of the Act in question" but by reference to the particular provision of law upon which the plaintiff relies. In that
case, an examination of the particular provision sought to be enforced by the petitioners indicated to the court
that economic interests were among the factors to be taken into account by the Fish & Wildlife Service in rendering its biological opinions, and accordingly that the petitioners' objective of protecting their economic interest in
the face of such biological determinations fell within the "zone of interest" served by that particular statutory provision.
In NRDC v. Patterson, 791 F. Supp 1425 (E.D.Cal. 1992), the defendants had moved to dismiss, for an alleged lack of standing, an APA claim premised on an alleged violation of the Reclamation Act of 1902. The plaintiffs alleged that the Reclamation Act specifically incorporated state law, that state law specifically restricts the
ability to divert water if such diversions will harm instream uses, and thus that the Bureau should be enjoined from
renewing certain contracts which would divert water. All parties apparently agreed that the plaintiffs had alleged
sufficient injury in fact, but defendants alleged that plaintiffs were not within the zone of interest of the Reclamation Act. The court considered the history of the Act, and Supreme Court decisions construing it, and found that
one of the primary purposes of the Act was to ensure that state laws pertaining to water use were preserved. The
court then considered the state law plaintiffs were relying on, and found that "as potential benefactors of the instream uses of [the] water, it is plain plaintiffs' interests are not 'marginally related to or inconsistent with the purposes implicit' in Section 8 [of the Reclamation Act and state law]," and thus plaintiffs had standing.
At least one court has held that the APA itself can never be the "relevant statute" when applying the zone of interests test. Animal Legal Defense Fund v. Quigg, supra, 932 F.2d at 937-938. The plaintiffs in that case alleged
that the APA rule making procedures had been violated when a federal agency promulgated a rule stating that
genetically engineered animals could be patented. The plaintiffs alleged that two different provisions of the APA,
relating to notice and rule making procedures, were violated. The court held that they could not rely on the APA
itself as the "relevant statue," and that under the patent statutes, they were not within the zone of interests. The
court refused to consider the APA as the relevant statute "[b]ecause the 'zone of interests' is intended to be a further limitation on standing," and to allow plaintiffs to merely allege that the APA was the relevant statue would "effectively eliminate the 'zone of interest' test." Id. at 938. n57
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n57 In determining whether the plaintiff's injuries fall within the zone of interest of the relevant statute, the Supreme Court has held that the plaintiff must only show that "the interest sought to be protected by the complainant is arguably within the zone of interests sought to be protected." National Credit Union Admin, v. First National
Bank & Trust Co., 522 U.S. 479, 492 (1998).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - 14. When Does a Party Have Standing to Assert the Rights of Third Parties?
The interests or actions of third parties (not before the Court) can affect standing in at least two ways. As discussed above, standing may be denied because the occurrence of the plaintiff's injury may depend on whether
third parties take certain action. See, e.g., Wilderness Society v. Griles, 834 F. 2d 4 (D.C. Cir. 1987). In other instances, the plaintiff may seek to actually assert the interests of third parties as part of the plaintiff's claim.
The Supreme Court has held as part of the "prudential" standing rules, that a party "generally must assert his
own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties."
Warth v. Seldin, 422 U.S. 490, 499 (1975). In Kowalski v. Tesmen, 125 S. Ct. 564, 567 (2004), however, the
court recognized that there may be circumstances where it is necessary to grant a party standing to assert the
rights of another, but limited this exception by requiring that a party seeking third-party standing demonstrate a
"close" relationship with the person who possesses the right and a "hindrance" to the possessor's ability to protect
his own interests. The court noted that it had allowed such third-party standing "to litigate the rights of third parties
when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third
parties' rights." 422 U.S. at 568.
15. When Does a Membership Organization Have Standing?
The environmental organization's standing to represent the interests of its membership is based on the concept of "representational standing." The Supreme Court established a three-part test for associational standing in
Hunt v. Washington State Apple Advertising Commission: n58
"[a]n association has standing to bring suit on behalf of its members when: (a) its members would
otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to
the organization's purpose; and (c) neither the claim asserted, nor the relief requested, requires the
participation of individual members in the lawsuit."
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n58 432 U.S. 333, 343 (1977). See also International Union, UAW v. Brock, 477 U.S. 274 (1986) (confirming the
Hunt test for representational standing).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - To satisfy the first prong of this test, Hunt required that there be at least one member of the plaintiff organization who would have "standing to present, in his or her own right, the claim (or the type of claim) pleaded by the
association." United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 1996 U.S.
Lexis 2956 (1996). In the United Food case, the Supreme Court stated that this requirement was mandated by
Article III, and thus could not be overridden by Congress.
The second prong -- that the interests asserted in the suit be germane to the organization's purpose -- was
stated to be "complementary" to the first, because it "raises an assurance that the association's litigators will
themselves have a stake in the resolution of the dispute, and thus be in a position to serve as the defendant's
natural adversary." See also Individuals for Responsible Government, Inc. v. Washoe County, 110 F.3d 699 (9th
Cir. 1997) ("the record in this case does not specify who are the members of Individuals for Responsible Government, Inc., nor does it specify the organization's purpose. Absent both purpose and members, it lacks any standing
to sue."). However, the United Foods court found it unnecessary to determine whether this second prong of the
Hunt test was constitutionally mandated.
In applying this second prong of the Hunt test, some courts have demanded that the organization establish
some formal nexus between its members' interests and the organization's authority to represent them. In Health
Research Group v. Kennedy, n59 Judge Sirica denied standing to a non-membership organization suing on behalf
of "contributors" or "supporters," on the grounds that (1) the contributors or supporters did not have sufficient control over the organization, since they did not participate in the election of the governing body, and (2) the purpose
for which the organization was formed was not sufficiently related to the interests of contributors (whose money
was tunneled through a more general public interest organization).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n59 82 F.R.D. 21, 9 ELR 20183 (D.D.C. 1979).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - The District of Columbia Circuit thereafter applied the criteria in the Health Research Group case to uphold
standing in Consumers Union of the United States, Inc. v. Miller. n60 The court held that a membership organization advocating consumers' interests had standing to sue because (1) the subject of consumer credit was germane to the public interest group's purpose as expressed in its certificate of incorporation, and (2) membership in
the organization established the nexus between the allegedly injured members and the organizational plaintiff. As
discussed below, this rationale has been applied in the Second Circuit as well. n61
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n60 84 F.R.D. 244 (D.C. Cir. 1979).
n61 Sierra Club v. Aluminum Corporation of America, 585 F. Supp. 842 (N.D.N.Y. 1984).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In applying the these criteria, the District of Columbia Circuit has applied a "relatively loose" test, requiring only
"mere pertinence between litigation subject and organizational purpose." Humane Society v. Hodel, 840 F.2d 45,
58 (D.C. Cir. 1988). At a minimum, however, this may involve examining the group's Articles of Incorporation or
other official statement of its raison d'etre. See, e.g., Hazardous Waste Treatment Council v. Environmental Protection Agency, 861 F.2d 277, 285 (D.C. Cir. 1988).
In Bldg. & Constr. Trades Council of Buffalo v. Downtown Dev., Inc., 2006 U.S. App. LEXIS 11377, 1-3 (2d Cir.
2006), the court upheld the associational standing of a labor union in a suit against the developers of a contaminated site based on the past work of union members at the site. The union alleged claims under the Resource
Conservation and Recovery Act for the open dumping of solid waste into Lake Erie and under the Clean Water Act
for the discharge of polluted water without a permit. The court noted that it was unclear whether successful litigation of these claims would advance "the occupational safety and health" of its members (the union's stated purpose), or instead would only advance the overall health and safety of its members as local residents who depend
on Lake Erie for drinking water or for recreation. Ultimately, however, because these claims were based on activities alleged to have occurred at the site where union members worked and were exposed to pollutants, the interests sought to be protected were held germane to the purposes of the union. Interestingly, the court dismissed
any question regarding the union's motives in bringing the suit:
"Our conclusion would be unchanged even if it were shown that, as the defendants contend, the
present suit 'was brought . . . to leverage greater union involvement in any construction projects at
the Hanna Furnace Site, interests wholly unrelated to the environmental claims made here.' . .
.Federal Rule of Civil Procedure 11(b) must be followed, but standing is not measured by divining
the mix of a party's motivations for bringing suit, and would not be defeated by showing that, absent
interests unrelated to the subject matter of the action, it would not have been filed."
In addition, there remain questions concerning the standing even of membership organizations in the environmental field, in instances where their members do not participate in the election of a board of trustees or in
determining the actions of the organizations. In Pacific Legal Foundation v. Gorsuch, n62 the Ninth Circuit held
that PLF lacked standing because "it does not allege that any of its directors, members, supporters, or contributors
has authorized or asked it to represent them in the suit." However, although published in the advance sheets, this
case was subsequently withdrawn from the bound volume. n63 In contrast, in a second unpublished opinion, the
same court held that PLF in another case had established "sufficient nexus" with a proposed sewer sludge project
to meet the minimum constitutional requirements of injury, causal connection, and redressability. n64
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n62 Originally published at 690 F.2d 725, 18 ERC 1127 (9th Cir. 1982).
n63 It is therefore questionable precedent. One district court declined to apply that case, noting that Gorsuch "is
not to be cited as binding precedent of the Ninth Circuit in light of that court's determination to withdraw the decision." Sierra Club v. Aluminum Corporation of America, 585 F. Supp. 842, 850 n.5 (N.D.N.Y. 1984).
n64 Pacific Legal Foundation v. Watt, 19 ERC 1602, 1603 (9th Cir. 1983).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In Sierra Club v. Aluminum Co. of America, n65 the court upheld the standing of the Sierra Club to represent
its members' interests and distinguished it from the organizations in Health Research Group and PLF I, emphasizing the extent of control exercised by the members of the Sierra Club over the organization at both the national
and local levels. n66 The Sierra Club v. ALCOA and Consumers' Union holdings thus seem to limit the requirements of Health Research Group to those cases where the membership possesses little or no control over the
organizational plaintiff's affairs.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n65 585 F.Supp. 842, 20 ERC 1916 (N.D.N.Y. 1984).
n66 20 ERC at 1923.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - The third prong of the Hunt test -- that the participation of individual members not be required for the suit -was held in the United Foods case to be a prudential consideration that could be overridden by Congress. Thus
prior cases had held that this prong precluded an organization from seeking damages on behalf of its members.
See, e.g., Telecommunications Research & Action Center v. Allnet Communications Services, Inc., 806 F.2d 1093,
1094-96 (D.C.Cir. 1986). However, in United Foods the court upheld the standing of a union to seek damages on
behalf of its members where Congress had specifically granted unions this remedy by statute. n67
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n67 In Colorado Environmental Coalition v. Wenker, 353 F.3d 1221, 1236 (10th Cir. 2004), the court upheld the
standing to challenge appointments to a Bureau of Land Management advisory committee by an individual plaintiff whose application to serve on the committee had been rejected, but denied standing to environmental organizations because the position on the advisory committee was "to be held by individuals, not organizations."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - 16. When Do Government Agencies Have Standing?
Agencies at both the federal and local level, of course, have standing to enforce environmental laws under express statutory authorization. In addition, "Local agencies" authorized "to develop and enforce environmental
standards" have been held to have independent standing under NEPA. Compare City of Davis v. Coleman, 521
F.2d 661, 672 (9th Cir. 1975), with Port of Astoria v. Hodel, 595 F.2d 467, 475 (9th Cir. 1979). However, in some
circumstances, agencies may be denied standing. For example, in a non-environmental case, Director, Office Of
Workers' Compensation Programs, Department Of Labor v. Newport News Shipbuilding & Dry Dock Co., Docket
93-1783 (Decided March 21, 1995), the court held that an agency seeking review of a Benefits Review Board denial of benefits to a claimant, was not "adversely affected or aggrieved" within the meaning of the statutory grant
of standing to seek such review.
In other cases, the courts have held that although cities may sue to vindicate a proprietary interest, they may
not act as parens patriae on behalf of their citizens. United States v. City of Pittsburg, 661 F. 2d 783, 787 (9th Cir.
1981); Safe Alternatives for Fruit Fly Eradication v. Berryhill, 1984 U.S. Dist. LEXIS 16830; 22 ERC 1036; 14 ELR
20587 (1984). Thus, a city may not simply assert the particularized injuries to the "concrete interests" of its citizens on their behalf. However, its own "proprietary interests" are not confined to protection of its real and personal
property, but include protection of its municipal responsibilities, powers, and assets. As the Ninth Circuit stated in
City of Sausalito v. O'Neill, 386 F.3d 486, 1198 (9th Cir. 2004): We have recognized that a municipality has an
interest in, inter alia, its ability to enforce land-use and health regulations, and its powers of revenue collection
and taxation. A municipality also has a proprietary interest in protecting its natural resources from harm. We have
also found constitutionally sufficient injury to proprietary interests where "land management practices of federal
land could affect adjacent [city]-owned land." (citations omitted).
17. How Are Standing Issues Raised?
In Steel Company v. Citizens For A Better Environment, 118 S. Ct. 1003 (1998), the Supreme Court considered the abstruse question of whether the plaintiff must first be thrown out of court for failure to state a cause of
action or for lack of standing. The question was whether the failure to state a cause of action deprived a federal
court of subject matter jurisdiction in the same way that a lack of standing does. Justice Scalia, writing for the majority, quoted from Bell v. Hood, 327 U.S. 678, 682 (1946): "jurisdiction . . . is not defeated . . . by the possibility
that the averments might fail to state a cause of action on which petitioners could actually recover." Rather, the
District Court has jurisdiction if "the right of petitioners to recover under their complaint will be sustained if the
Constitution and laws of the United States are given one construction and will be defeated if they are given another," id. at 685, unless the claim "clearly appears to be immaterial and made solely for the purpose of obtaining
jurisdiction or where such a claim is wholly insubstantial and frivolous." Id. at 682-683. n68
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n68 In DaimlerChrysler Corp v. Cuno, U.S. (No. 04-1704, May 15, 2006), the Supreme Court held that the
federal court's supplemental jurisdiction does not allow it to hear claims that do not satisfy the standing and other
requirements of the Article III, merely because it is appended to a claim that presents a federal question and
meets the Article III requirements. The court noted that its standing cases require that a plaintiff demonstrate
standing for each claim he seeks to press.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The merits issue in the Steel Company case was whether the citizen suit provision of the Emergency Planning
and Community Right-To-Know Act of 1986 (EPCRA) authorizes suits for purely past violations. In Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987), the court had dismissed on jurisdictional
grounds under the Clean Water Act a suit that was based on purely past violations. Justice Scalia dismissed
Gwaltney's treatment of the issue as jurisdictional as a "drive-by jurisdictional ruling," since the case did not need
to be decided on that ground. He also rejected the Ninth Circuit's practice of "assuming" jurisdiction for the purpose of deciding the merits - which he labeled the "doctrine of hypothetical jurisdiction." Justice Scalia declared
that the Article III question of standing must be decided first.
In Massachusetts v. EPA, 367 U.S. App. D.C. 282 (D.C. Cir. 2005), recently reversed on the merits by the Supreme Court, the D.C. Circuit had to consider how to apply the Steel Company decision when there was an overlap
between the determination of standing and the merits. The panel split on the issue of whether the plaintiffs had
standing to challenge EPA's denial of a petition asking it to regulate greenhouse gas emissions from new motor
vehicles under the Clean Air Act. Ultimately, the majority opinion ducked the standing issue and proceeded to determine the merits. The court was troubled by the fact that traditional procedures for standing required a final determination of standing before the merits could be addressed, but as an appellate court it did not conduct evidentiary hearings in order to make findings of fact. It noted that there was a conflict in the evidence in the administrative record as to whether greenhouse gas emissions will cause a significant change in the global climate and that
evidence was in part EPA's reason for declining as a matter of policy to regulate. Given this overlap between the
standing and merits issues, the majority opinion proceeded to the merits with respect to EPA's decision not to regulate and upheld EPA's position.
The plaintiff's standing can be challenged in a motion to dismiss under Fed.R.Civ.Proc. 12(b), or at any time
during the proceeding, or on appeal (as a jurisdictional issue). Early environmental cases suggest that standing is
sufficiently demonstrated by allegations in the complaint and may be established as proved at trial on this basis.
n69 However, as standing has been challenged to a greater degree, some courts have held bifurcated trials so
that the issue of standing can be tried first and separately from the merits. n70
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n69 See Sierra Club v. Morton, 405 U.S. 727 (1972).
n70 See, e.g., Carolina Environmental Study Group v. AEC, 431 F. Supp. 203 (W.D.N.C. 1977) (four day standing
trial in Duke Power case).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In Alliance for Envtl. Renewal v. Pyramid Crossgates Co., 436 F.3d 82 (2d Cir. 2006), the court noted that
once a motion to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) has put standing in issue, a district
court has leeway as to the procedure it wishes to follow. After limited discovery on the jurisdictional issue, the matter might be appropriate for resolution on motion supported by affidavits, or, if a genuine dispute of material fact
exists, the court may conduct a hearing limited to standing. Or, where the evidence concerning standing overlaps
with evidence on the merits, the court might prefer to proceed to trial and make its jurisdictional ruling at the close
of the evidence. If, however, the overlap in the evidence is such that fact-finding on the jurisdictional issue will
adjudicate factual issues required by the Seventh Amendment to be resolved by a jury, then the court must leave
the jurisdictional issue for the trial. The court may also deem it appropriate to make a preliminary finding on jurisdictional facts, subject to revision later in the proceedings or at trial.
Whether standing may be raised on appeal depends on whose standing is being challenged. In general, the
standing of a plaintiff who initiated federal court action may also be raised for the first time on appeal since it is a
jurisdictional issue. However, a defendant who seeks Supreme Court review of a state court judgment may not
challenge the standing of the plaintiff since Article III does not limit the standing rules in state courts. Virginia v.
Hicks, 539 U.S. 113, 120-121 (2003). In those instances where an intervenor seeks to take an appeal of a judgment against another party in the court below, the appellate court will review both whether the would-be appellant
was properly granted intervention below and has met the Article III standing requirements. n71
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n71 For example, in Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392 (9th Cir. 1995), conservation groups
who intervened on the government's behalf were allowed to take an appeal of a ruling against the government
when the government itself did not appeal, but only after the court had determined both that they were properly
intervenors in the court below and had met the Article III requirements for standing in the matter. Moreover, the
court has held that standing to defend an appeal in the place of an original defendant demands that the litigant
possess "a direct stake in the outcome." Diamond v. Charles, 476 U.S. 54, 62 (1986). Thus, for an intervenor to
appeal, his interests must be adversely affected by the judgment in the lower courts. See, e.g., Dedrickson v. Dept.
of Interior, 982 F.2d 1332, 1338 (9th Cir. 1992). In Devlin v. Scardelletti, 536 U.S. 1 (2002), the court held that a
class member who was not a named class represetnative, but who had objected in a timely manner at the fairness
hearing to a class settlement's approval, had standing to bring an appeal of the District Court's decision to disregard the member's objections, without first intervening in the action. The court held that the objecting nonnamed
class member ought to be considered a "party" for purposes of appealing the settlement's approval.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In construing some of the cases discussed above it is important to take into account the stage of the proceeding at which standing issues were raised. For example, the decision upholding standing in Lucas v. South Carolina
Coastal Council, 112 S.Ct. 2886 (1992) was distinguished by the court on the ground that standing in Lucas was
being tested at the pleading stage, rather than in summary judgment. n72 See also Bennett v. Spear, 117 S.Ct.
1154 (1997). In Lucas, the court stated of National Wildlife Federation: "had the same challenge to a generalized
allegation of fact been made at the pleading stage it would have been unsuccessful." Indeed, at an earlier stage of
the National Wildlife Federation case, the D.C. Circuit upheld the standing of the plaintiffs in the context of a motion to dismiss, based on the complaint's general allegations that the plaintiff's members used the lands which
were the subject of the suit. National Wildlife Federation v. Burford, 835 F.2d 305 (D.C. Cir. 1987).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n72 It is also important to recognize that standing that may exist at the beginning of litigation may be lost by
changes in circumstances thereafter. Cf. Gollust v. Mendell, 501 U.S. 115 (1991).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - From the standpoint of the plaintiff's lawyer in environmental litigation, perhaps the most significant principle
which emerges from all of the case law on standing is that his clients can ride the coat tails of any one plaintiff
who achieves standing. If the standing of one plaintiff is established, the Supreme Court has suggested that it is
unnecessary for the court to consider the standing of the other plaintiffs. n73 On the other hand, standing established for one claim does not necessarily suffice for other claims. As the Supreme Court has stated, "a plaintiff
must demonstrate standing separately for each form of relief sought." Friends of the Earth, inc. v. Laidlaw Environmental Services, Inc., 120 S. Ct 693, 706 (2000). Hence, before the complaint is filed a little attention to questions of standing in the joinder of plaintiffs and the careful framing of standing allegations are important steps to
dispel any standing challenge.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n73 See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 126 S. Ct. 1297, 1303 (2006); Watt v. Energy Action Educational Foundation, 454 U.S. 151 (1981); Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 264 n.9 (1977). See also National Solid Waste Management Association v. Pine Belt Regional Solid Waste Management Auth., 389 F.3d 491, 501 (5th Cir. 2004). Thus, because another party was held
to have standing, in one case an endangered bird species was a named party plaintiff in an action fully litigated
before the Ninth Circuit. Palila (Psittirostra bailleui) v. Hawaii Department of Land and Natural Resources, 639
F.2d 495 (9th Cir. 1981). The Sierra Club was also named as a party plaintiff in this case, successfully alleging
injury in fact to the interests of individual members of the Club in the protection of this tropical bird species. In a
later case, the Ninth Circuit decided that animals do not have standing to sue in their own name for violations of
the Endangered Species Act and other federal statutes. Cetacean Community v. Bush, 386 F.3d 1169, 1176 (9th
Cir. 2004).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
18. What Kind of Factual Showing of Standing is Required?
The seminal decisions of the Supreme Court in the National Wildlife Federation and Defenders of Wildlife cases should be examined as much for what they indicate about the factual showing that is necessary to prove standing as for any principled limitations on standing. For example, the factual showing made by the plaintiffs in National Wildlife Federation is in decided contrast to other litigation brought by environmental groups regarding large
expanses of federal land. Thus, there was no declaration from someone at NWF who was familiar with the distribution of its membership and could point at least in general terms to the numbers of NWF members that were
known to reside near or make some use of some of the public lands in the suit and the respects in which those
interests would be injured by the actions complained of. That could have been supplemented by a substantial
number of declarations from people (1) who make actual use of particular affected areas or (2) whose enjoyment
of nearby areas for stated reasons would be affected by the actions on the public lands in question.
This kind of showing was held sufficient in National Wildlife Federation v. Hodel, 839 F.2d 694 (D.C. Cir.
1988). The court upheld the standing of national environmental groups to challenge national surface mining regulations issued by the Department of Interior. The detailed affidavits of plaintiffs' members showed that they lived
in communities where surface mining operations have occurred and that they would suffer particular kinds of injury from the surface mining inadequately regulated. The court upheld standing, however, only after examining plaintiffs' showing of standing with respect to each of the claims made.
Two Ninth Circuit cases illustrate the kind of showing that must be made to establish standing. In Idaho Conservation League v. Mumma, 956 F. 2d. 1508 (9th Cir. 1992), the plaintiffs challenged the Forest Service's decision to recommend against wilderness designation for numerous roadless areas within the Idaho Panhandle Forest, claiming violations of the National Forest Management Act and NEPA. The district court held that the plaintiffs
lacked standing, and the court of appeal reversed. The court specifically found National Wildlife Federation to be
"inapposite," because in that case the plaintiffs had only alleged that they "used locations in the vicinity" of lands
that would be open to mining. In contrast, in the Idaho Conservation case, the plaintiffs members "filed declarations naming the specific areas they are accustomed to visit and enjoy." Id. (emphasis by the court). See also
Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065 (9th Cir. 1997) (standing affidavits held sufficient to challenge
commercial fishing in National Park waters).
In the Idaho Conservation case, the court specifically distinguished its earlier decision in People for Ethical
Treatment of Animals v. Department of Health and Human Services, 917 F.2d 15 (9th Cir. 1990). In that case,
plaintiffs asserted that the federal agencies' failure to prepare an EIS before awarding research grants to institutions in the San Francisco Bay area violated NEPA. Id. at 16. The court held that there was no standing because
the plaintiffs had failed to file a declaration averring "specific facts" that plaintiffs' use of a particular area in the
Bay Area would be harmed by the actions. The court held that in the context of a summary judgment motion it is
not enough to file "averments which state only that the declarant uses unspecific portions of a large metropolitan
area, on some portions of which hazardous substances might be transported or disposed." Id. at 17.
II. RIGHTS OF ACTION
The "right of action" is the statutory basis of the plaintiff's claim and may be conferred by a citizen suit provision in a statute, or may be implied from a statute. It is important to distinguish not only standing but also subject
matter jurisdiction from the question of whether a right of action exists. Subject matter jurisdiction for actions under federal environmental statutes exists under the federal question statute, 28 U.S.C. § 1331. See Andrus v.
Charlestone Stone Products Co., 436 U.S. 604, 607-08 n.6 (1978) (jurisdiction to review the administrative interpretation of a federal statute is "clearly conferred" by § 1331). Ordinarily, a federal claim for relief is required for
federal question jurisdiction. However, in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), the Supreme Court held that federal question jurisdiction also extended to some cases
in which state law created the cause of action but the resolution of that cause of action required the determination of an issue of federal law. In that case, the Court held that the national interest in providing a federal forum
for federal tax litigation was sufficiently substantial to support the exercise of federal-question jurisdiction over the
removal to the District Court of a quiet-title action under state law, which required a determination of the meaning
of a notice requirement in a federal statute.
1. Why is the Plaintiff's "Right of Action" Important?
In cases where there is no express "citizens' suit" provision, environmental plaintiffs may be confronted with
an additional obstacle to suit, as a result of several Supreme Court cases, but it is not as broad an obstacle as it
initially appeared to be. In California v. Sierra Club n74 and Middlesex County Sewerage Authority v. National Sea
Clammers Association, n75 the plaintiffs attempted to avail themselves of rights of action not explicitly provided
by the statutes under which they sued. In California v. Sierra Club, the Supreme Court held that the plaintiffs possessed no private right of action because they were not among those for whose "especial benefit" the statute in
question was enacted. In Sea Clammers, the court rejected plaintiffs' claimed right of action because the statute
pursuant to which they sued contained an express right of action provision which did not allow the damages plaintiffs sought. This express right, the court held, precluded the implication of a right to other relief. n76
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n74 451 U.S. 287(1981).
n75 453 U.S. 287(1981).
n76 Cases suggest the Supreme Court will continue to limit implied rights of action. In Daily Income Fund, Inc. v.
Martin Fox, 46 U.S. 523, 52 U.S.L.W. 4119 (1984), the Supreme Court reiterated its commitment to strict application of the traditional requirement of express statutory remedy.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - These decisions created immediate consternation in the environmental community and confusion in the
courts. The liberalized standing which had been freely dispensed for a decade suddenly appeared to have been
withdrawn by a sleight of hand. After all, the environmental statute which had generated more lawsuits than any
other -- the National Environmental Policy Act -- contained no "citizens' suit" provision, but the plaintiffs suing under
NEPA had not been required to show that NEPA granted them an "implied private right of action." As described
below, the escape from this paradox was the traditional right of review under the Administrative Procedure Act.
The court applied the Sea Clammers rule in Meghrig v. KFC Western, Inc., 516 U.S. 479 (1996). It reversed
the decision of the Ninth Circuit that the citizen suit provision of the Resource Conservation and Recovery Act
("RCRA") includes a restitution remedy for cleanup costs incurred by the plaintiff when the contamination in the
past posed imminent and substantial danger. As the court succinctly stated in a short opinion by Justice O'Connor:
"Section 6972(a) does not contemplate the award of past cleanup costs, and § 6972(a)(1)(B) permits a private
party to bring suit only upon an allegation that the contaminated site presently poses an 'imminent and substantial
endangerment to health or the environment,' and not upon an allegation that it posed such an endangerment at
some time in the past."
In concluding that RCRA did not provide for the recovery of cleanup costs, the court noted that CERCLA
showed that Congress knew how to provide for such remedies when it wanted. The court further focused on the
statutory language that the endangerment in question must be "imminent" and involve waste which "may present"
imminent harm. The court held that such additional private remedies cannot be implied in a statute where Congress has provided "elaborate enforcement provisions" for remedying the violations of a federal statute. It did
state that its decision was made "without considering whether a private party could seek to obtain an injunction
requiring another party to pay cleanup costs which arise after a RCRA citizen suit has been properly commenced,. .
.or otherwise recover cleanup costs paid out after the invocation of RCRA's statutory process. . . ."
2. What are the Tests for Implying a Right of Action?
The four requirements for implying a private right of action are set forth in Cort v. Ash. n77 First, is it clear
from the face of the statute and its legislative history that the plaintiffs are among the class for whose special
benefit the statute was enacted? Second, is there anything in the act or its legislative history that reflects "an explicit purpose to deny" a private right of action (which is the "controlling" consideration when a law has been
passed to benefit a special class)? n78 Third, is a private remedy "necessary or at least helpful to the accomplishment of the statutory purpose"? n79 Fourth, is the cause one traditionally relegated to state law?
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n77 422 U.S. 66, 78(1975).
n78 Cannon v. University of Chicago, 441 U.S. 677, 694 (1979).
n79 Id. at 703.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - 3. Does the Plaintiff have a Right of Review under the APA?
Environmental groups have largely succeeded in avoiding the pitfalls of the search for an "implied right of action" by alleging that they are relying upon a separate right of review of final agency action under the Administrative Procedure Act. For this purpose, it makes no difference whether there is independently an implied private right
of action under the federal statute sought to be enforced. n80 There is supposed to be an established presumption of reviewability under the APA. Thus, it used to be the case that "only upon a showing of 'clear and convincing
evidence' of a contrary legislative intent should the courts restrict access to judicial review [under the APA]." n81
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n80 See Chrysler Corp. v. Brown, 441 U.S. 281, 317 (1979) ("a private right of action" under the Trade Secrets Act
"is not 'necessary to make effective the congressional purpose' . . . for we find that review . . . is available under
the APA."). See also Citizens for Hudson Valley v. Volpe, 425 F.2d 97, 104 (2nd Cir. 1970) (although the Rivers
and Harbors Act of 1899 has no express provisions, review of violations of the Act can be had under the APA); California v. Watt, 683 F.2d 1253 (9th Cir. 1982) (review of agency compliance with the Coastal Zone Management
Act available under the APA).
n81 Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967). See also Morris v. Gressette, 432 U.S. 491, 50001 (1977); Barlow v. Collins, 397 U.S. 159, 166-67 (1970).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - However, two Supreme Court decisions have cast doubt on the strength of this presumption. First, the court
appeared to severely weaken this presumption in Block v. Community Nutrition Institute. n82 In holding that consumers lacked standing to challenge the Secretary of Agriculture's milk pricing policies, the court reversed the
Court of Appeals' application of the "clear and convincing evidence" test. The Supreme Court stated that "the presumption favoring judicial review [is] overcome, whenever the congressional intent to preclude judicial review is
'fairly discernible in the statutory scheme.'" n83
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n82 104 S.Ct. 2450(1984).
n83 52 U.S.L.W. at 4700 (quoting Data Processing Service v. Camp, 397 U.S. 150, 157).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - Having weakened the presumption of reviewability in Block, the court then acted to restore it at least partially
in Lindahl v. Office of Personnel Management. n84 The court reiterated the traditional test that "only upon a showing of clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial
review." However, as in Block, the Lindahl court held that "the question whether a statute precludes judicial review
is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." n85 Recognizing that "the clear
and convincing evidence' standard has never turned on a talismanic test," the Lindahl court held that judicial review of agency action was available in that case. Despite the court's recognition that the statute in question could
"plausibly . . . be read as imposing an absolute bar" to judicial review, n86 it allowed judicial review of the agency's
factual determinations. The Lindahl court's decision to forego Block's "fairly discernible" analysis perhaps suggests
restored vitality for the presumption of reviewability.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n84 105 S.Ct. 1620 (1985).
n85 105 S.Ct. at 1627 (citing Block v. Community Nutrition Institute, 104 S.Ct. at 2454).
n86 105 S.Ct. at 1627 (emphasis added).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In addition, determination of whether APA review is available depends not only on whether there is an explicit
bar to reviewability in the substantive statute in question but also whether the specific mechanisms for judicial
review contained in the latter statute in effect preclude review under the APA. For example, in Idaho Sporting Congress, Inc. v. United States Forest Service, 92 F.3d 922 (1996), the court held that the plaintiffs had no right to
judicial review under the APA of certain salvage timber sales because the provisions of the Rescissions Act "provides a specific mechanism for judicial review and offers a remedy, if appropriate for every salvage timber sale"
and therefore "the APA is not applicable to timber sales covered by the Rescissions Act." On the other hand, in
Bennett v. Spear, 117 S.Ct. 1154 (1997), the court held that a particular claim was maintainable under the APA,
although not available under the Endangered Species Act's citizen suit provisions. In that case, the court found
that there was nothing in the Endangered Species Act's citizen suit provision which expressly precluded review
under the APA or anything in the statutory scheme suggesting a purpose to do so.
4. Does the Plaintiff have a Right of Action under a Different Statute?
In Sea Clammers, the court not only held that there was no private right of action for damages under the Federal Water Pollution Control Act and the Marine Protection, Research and Sanctuaries Act, but also that the plaintiffs could not seek damages for violation of these statutes under 42 U. S. C. § 1983, which authorizes suits to
redress violations by state officials of rights created by federal statutes. The court held that "[w]hen the remedial
devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional
intent to preclude the remedy of suits under § 1983." In Gonzaga University v. Doe, 536 U.S. 273 (2002), the
Court held that § 1983 could provide the basis for a suit only if the federal statute alleged to have been violated
showed a Congressional intent to create a federally enforceable individual right. In City of Rancho Palos Verdes v.
Abrams, 544 U.S. 113 (2005), the court held that a § 1983 action was not available to enforce federal statutory
limitations on local zoning authority over wireless-communications facilities because Congress did not intend the
judicial remedy expressly authorized in the federal statute to coexist with an alternative remedy available in a §
1983 action.
A similar question has arisen under the Federal False Claims Act with mixed results. In U.S. ex rel Fallen v. Accudyne Corp, 880 F.Supp. 636 (W.D. Wisc. 1995), the court held that the plaintiffs could sue under the FCA for a
government contractor's violation of environmental statutes on the ground that compliance with these statutes
was a condition of the government contract and that the defendant "had falsely certified that it had so complied in
order to induce payments under the contracts." 880 F.Supp. at 639. The court held that Sea Clammers did not
foreclose this result because the FCA and the environmental statutes "provide remedies for entirely different conduct." Id. See also United States v. General Dynamics Corp., 19 F.3d 770 (2d Cir. 1994) (violations of the AntiKickback Act enforced through a FCA claim); United States v. Island Park, 888 F.Supp. 419 (E.D.N.Y. 1995) (violations of Fair Housing Act enforced through FCA claim).
However, in U.S. ex rel Sutton v. Doubleday Office Services, 1996 U.S. Dist. LEXIS 5610 (N.D.Cal. 1996), the
court rejected a claim under the Act, based on a government contractor's violation of the requirement of another
federal statute that prevailing wage rates be paid. The court held that the exclusive remedies provided for under
the latter statute were administrative. It distinguished the above cases on the grounds that the "other statutes" did
not provide for "exclusive administrative enforcement" but "allow for both private rights of action and for enforcement in conjunction with other statutes" such as the False Claims Act.
Like the False Claims Act, a number of states have statutes which may provide a right of action for violations
of other statutes which do not themselves have any citizen suit provisions. Some of these state statutes are exceptionally broad in the standing that they grant ordinary citizens to enforce environmental or other statutes. A
prime example, before its recent amendment, was California Business & Professions Code § 17200, which prohibits "unfair competition" defined as "any unlawful, unfair or fraudulent business act or practice" in addition to false
or misleading "advertising." The reference to "unlawful" acts or practices has been construed to create a private
right to sue for violations of other statutes even where those statutes do not themselves confer any standing for
private actions.
In Stop Youth Addiction v. Lucky Stores, Inc., 17 Cal 4<th> 553 (1998), the court confirmed that a cause of
action could be asserted by any citizen under § 17200 for violation of another statute which did not itself have a
private right of action. In reaching this decision the court held that § 17200 was not "preempted" by the legislature's enactment of the other statutory scheme and that it could not be construed as intending to make the other
statutory scheme as the exclusive means of regulation. The court held that when the legislature has intended to
do this it has expressly so stated. The court held that "the Legislature intended this 'sweeping language' to include
'anything that can properly be called a business practice and that at the same time is forbidden by law.'" n87 In
2004, § 17200 was amended by an initiative measure, Proposition 64, which limits standing to bring an action
under the Unfair Competition Law to any person who has suffered injury in fact and has lost money or property as
a result of such unfair competition.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n87 Other decisions construing California's Unfair Competition Act include Kraus v. Trinity Management Services,
Inc., 23 Cal. 4<th> 116 (2000) (Disgorgement into a fluid recovery fund was not available in unfair competition
law action, where the action had not been certified as a class action); Rothschild v. Tyco Internat. (U.S.), Inc., 83
Cal.App. 4<th> 488 (2000) (Dismissal of action for violations of the unfair competition law was reversed because
the bar on related actions applied only to subsequent qui tam actions filed under the false claims act). In a paper
prepared for the California Law Revision Commission, "California's Unfair Competition Act: Conundrums And Confusions," by Robert C. Fellmeth (January 1995), the author reported that sixteen other states have provisions comparable in one way or another to California's Unfair Competition Act. The cited provisions were Alaska Stat. §
45.50.471; Conn. Gen. Stat. Ann. § 42-110b; Fla. Stat. Ann. § 501.204; Haw. Rev. Stat. § 480-2; Ill. Ann. Stat. ch.
121 1/2 § 262; La. Rev. Stat. Ann. art. 51 § 1405; Me. Rev. Stat. Ann. tit. 5, § 207; Mass. Gen. Laws Ann. ch.
93A, § 2; Mont. Code Ann. § 30-14-103; Neb. Rev. Stat. § 59-1602; N.C. Gen. Stat. § 75-1.1; S.C. Code Ann. § 395-20; Utah Code Ann. § 13-5-2.5; Vt. Stat. Ann. tit. 9 § 2453; Wash. Rev. Code Ann. § 19.86.020; Wisc. Stat. Ann.
§ 100.20.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - In summary, if there is a "citizen suit" provision in a statute, the plaintiff need not establish an implied private
right of action unless the relief sought is different than that provided in the "citizen suit" provision. Where there is
no "citizen suit" provision and review is sought of a federal agency's compliance with a statute, the plaintiff may
rely on the right of judicial review under the Administrative Procedure Act, unless the statute sought to be enforced
precludes judicial review under the tests in either Block or Lindahl. The requirement of an implied right of an action remains an obstacle only in contexts other than these. n88 Finally, as noted above, the rights of action under
state law may be radically broader than the federal jurisprudence allows.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n88 For example, this requirement would bar a suit for damages for violation of the National Environmental Policy
Act. The Third Circuit has held that it also bars a suit by municipalities challenging individual railroads' violations of
regulations under the Hazardous Materials Transportation Act. Borough of Ridgefield v. New York Susquehanna &
Western Railroad, 17 ELR 20415 (3d Cir. 1987).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - III. SOVEREIGN IMMUNITY
Any environmental suit against a state or relating to property owned by it may be subject to a defense of sovereign immunity. The Supreme Court's decision in Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114 (1996) effectively precludes any private cost recovery action under CERCLA against a state. The court held that Congress
could not use its Commerce Clause powers to abrogate a state's immunity under the Eleventh Amendment. However, private citizen suits under CERCLA and RCRA for injunctive relief against state officials to compel compliance
with these statutes (but not monetary relief) are still available under the doctrine of Ex Parte Young, 209 U.S. 123,
28 S.Ct. 441 (1908).
In Federal Maritime Comm'n v. South Carolina State Ports Authority, 535 U.S. 743 (2002), the Supreme Court
held that the doctrine of sovereign immunity also protected a state from a private citizen's attempt to obtain adjudication of a claim against the state before a federal administrative agency. The court examined the particulars of
Federal Maritime Commission proceedings and found that they walked, talked and squawked like a lawsuit, and
that they were therefore subject to the sovereign immunity defense because of their strong resemblance to federal civil litigation.