Sierra Club v. Hickel: Standing and the Supreme Court

Before the Supreme Court now is the Sierra Club's petition for the writ of certiorari in Sierra Club v. Hickel, 1 ELR 20015, 2 ERC 2669, __ F.2d __ (9th Cir. September 16, 1970). The Sierra Club seeks certiorari because the court of appeals held (2-1), in a decision reversing the district court below (1 ELR 20011), that the club did not have standing to challenge the actions of federal officials who were about to permit Walt Disney Productions, Inc. to construct a winter ski resort facility which would require extensive development in both the Sequoia National Park, which surrounds and overlooks Mineral King Valley, and in the Sequoia National Game Refuge, which lies in the Valley. The Ninth Circuit also held (3-0) that the district court erred in granting the club a preliminary injunction. The Ninth Circuit stayed its order pending action on this petition for certiorari.

The Supreme Court has yet to agree to hear a case in which the standing to sue of an environmental organization has been directly challenged. Until last September such a hearing did not appear necessary. Federal courts on all levels had enlarged and refined the range of interests which parties might show in order to establish that they had standing to sue.¹ Many of the federal cases in which standing was in dispute did not involve environmental interests; nevertheless, in these cases dicta tended to support the sufficiency for purposes of standing of a wide range of environmental interests. See, e.g., Association of Data Processing Organizations v. Camp, 397 U.S. 150, 154 (1970).

Certiorari Denied in Citizens Committee for the Hudson Valley v. Volpe

Sierra Club v. Hickel is the only case presently before the Court in which the issue of the standing of environmental groups could be resolved. On December 7, 1970 the Court decided not to grant the petition for certiorari in Citizens Committee for the Hudson Valley v. Volpe, 1 ELR 20006, 425 F.2d 97 (1970), thereby ending speculation that the Court might either consider Citizens Committee only, or at the same time with Sierra Club v. Hickel. Plaintiff Citizens Committee for the Hudson Valley originally brought its action in the district court (S.D.N.Y.) to block delivery of a Corps of Engineers landfill permit necessary for the proposed Hudson River Expressway along nine miles of the river's eastern shoreline. On April 16, 1970 the Second Circuit, affirming the district court below, held that the district had subject matter jurisdiction, that plaintiffs had standing and that, under the Rivers and Harbors Appropriations Act of 1899, 1 ELR 41141, a Corps permit cannot be issued for a project involving a dike or causeway without the prior approval of Congress and the Department of Transportation.

Reasons for Review in Sierra Club v. Hickel

There are good substantive reasons to expect the Court to grant the Sierra Club's petition for certiorari. Sierra Club v. Hickel is ripe for review; if the Court were to refuse to grant the writ of certiorari on the ground that the Ninth Circuit's ruling on the merits of the preliminary injunction was dispositive, independent of the court of appeals's ruling on standing, the Court's decision would have the effect of affirming the Ninth Circuit opinion on standing, with the apparent result that the district curt would be obliged to dismiss the club's complaint so that the case would not go to trial on the permanent injunction. However, the Court might grant certiorari and remand to the district court with instructions to allow the club to amend its complaint and allege club use of the Mineral King Valley area (which use, it must be emphasized, was not alleged originally). (Amici curiae Wilderness Society, Izaak Walton League and Friends on the Earth, whose brief is printed in full at 1 ELR 29001, suggest that the Court should grant the writ and either (a) hear the cause on the merits or (b) continue the present injunction until plaintiff has had the opportunity to amend its complaint in the district court and has received a full hearing on its prayer for a permanent injunction.)

The Ninth Circuit opinion is in direct conflict with at least two other courts of appeals decisions in two [1 ELR 10003] other circuits: Citizens Committee, supra, and Environmental Defense Fund v. Hardin, 428 F.2d 1093, 1 ELR 20050 (D.C. Cir. 1970). The Sierra Club in its petition (p. 14) urges that the Ninth Circuit opinion is also in conflict with Scanwell Laboratories v. Shaffer, 424 F.2d. 859, 861 (D.C. Cir. 1970). The Ninth Circuit opinion appears to conflict with several district court opinions in other circuits as well (See the brief of amici curiae, at 1 ELR 29001). The Environmental Defense Fund, Inc., as amicus curiae, points out in its brief that the Supreme Court has not yet had occasion to consider the allegations that should be required to sustain the standing of an organization that has suffered no special harm to itself but has sued instead to protect the public interest. EDF's contention is crucial. If the Court does not remand with instructions to allow the club to correct what the Court may conceivably regard as an error in pleading, the Court could decide this issue. And the issue is of great importance: some interests worthy of judicial protection are difficult to put into traditional categories of injury. Frequently injury is characterized in terms of use, and standing accompanies a denial of use. But what "use," for example, is made of eagles? Of wilderness?

Sierra Club v. Hickel neither conflicts nor conforms with the Supreme Court's recent decisions on standing in Data Processing, supra, and Barlow v. Collins, 397 U.S. 159 (1970), although dicta in these decisions tend to support the standing of environmental groups alleging other than economic harm. In both Data Processing and Barlow plaintiffs were able to allege direct economic harm.

Finally, the Ninth Circuit opinion appears to be the result of a limited amount of confusion caused by the rapid evolution of the law of standing. In spite of the majority of recent decisions which have consistently liberalized the law of standing, uncertainties still persist. Confusion exists between a party's standing to seek review, and the jurisdiction of the court to review. The recent history of this problem is treated at length in the Primer for the Practice of Federal Environmental Law, 1 ELR 50001, at 50004. Disagreement exists about the circumstances, if any, in which section 702 of the Administrative Procedure Act, set out at 1 ELR 41001, grants standing. And finally there is uncertainty about the kinds and degrees of interests which the law will recognize in conferring standing. For example, in Sierra Club v. Hickel the Ninth Circuit appears to have established a balancing of interests test, where in a group of interested parties, only those with the strongest interests have standing. (This point is developed in more detail by Peterson, An Analysis of Title I of the National Environmental Policy Act, 1 ELR 50035, at 50047).

These and other difficulties with the law of standing must be resolved by the Supreme Court.

1. See Primer for the Practice of Federal Environmental Law, 1 ELR 50001. See also Davis, The Liberalized Law of Standing, 37 U. Chi. L. Rev. 450 (1970).