Supreme Court Decides the Mineral King Case: Sierra Club v. Morton

At long last the Supreme Court has decided Sierra Club v. Morton, 2 ELR 20192 (April 19, 1972). Heralded as the decision that would adopt, clarify, and perhaps expand the liberal view of the Second Circuit on the standing of environmental groups to bring public interest lawsuits, Sierra Club v. Morton instead rejects the Second Circuit view in an opinion that avoids major constitutional issued and requires, somewhat imprecisely, that environmental groups allege individualized harm to themselves or their members in order to maintain actions. The Supreme Court's decision, emphasizing as it does undefined "individualized interests" in the matter in controversy, may trigger a new round of litigation over standing in the federal courts as the sufficiency of such interests is challenged. However, unless the federal courts read more into the opinion than the Supreme Court intended, the furor should quickly subside, as plaintiff environmental groups join the best individual plaintiffs in their actions and begin to allege harm to the individuals and to their organizations.

The Facts and the Case in the Courts Below

The Sierra Club and other environmental groups have kept a close watch for many years over the federal government's management of Mineral King, an isolated valley in the Sierra Nevada Mountains of California. Beginning in 1965, the Club began to view with increasing alarm the actions of federal officials who were about to permit Walt Disney Productions, Inc. to construct a winter ski resort which would require extensive development of both the Sequoia National Park, which surrounds and overlooks Mineral King valley, and the Sequoia National Game Refuge — a part of Sequoia National Forest — which lies in the valley. Early attempts to dissuade the government failed. In June of 1969 the Club filed suit in the Federal District Court for the Northern District of California, seeking declaratory and injunctive relief on the grounds that the Forest Service and Park Service had acted unlawfully by failing to hold public hearings and by proposing to grant permits for the ski facility, the ski runs, an access highway and a power transmission line. The district court granted a preliminary injunction. The court's opinion appears at 1 ELR 20010. A detailed summary of the parties' arguments in the district court appears at ELR Dig. [58].

On appeal to the Ninth Circuit, federal defendants challenged both the Club's standing and the district court's holding on the merits of the preliminary injunction. The Club lost on both grounds and immediately sought certiorari to the Supreme Court. The opinion of the Ninth Circuit appears at 1 ELR 20015. The parties' arguments in the Ninth Circuit are detailed in ELR Dig. [58], as are the Club's arguments in its petition for certiorari. The full text of the brief supporting the petition for certiorari of amici curiae Wilderness Society, Izaak Walton League and Friends of the Earth appears at 1 ELR 29001. The Supreme Court granted certiorari on February 22, 1971. 401 U.S. 907. Oral argument was heard on November 17, 1971.

The Supreme Court's Holding

In the Supreme Court and in both the courts below, the Club relied exclusively upon its special interest as an organization in the Sierra Nevada Mountains and in the nation's parks, game refuges and forests as the basis for its standing to challenge the Disney development. It also asserted in its Complaint (ELR Dig. [58], Doc. A) that it regularly served "as a responsible representative of persons similarly interested." Moreover, in its reply brief in the Supreme Court, the Club specifically refused to rely either upon its individual organizational interest in Mineral King, based upon official Club outings in the valley, or upon the use of the area for recreation purposes by individual Club members. 2 ELR 20194, footnote 8. In short, the Club sought to require the Court to rule upon its standing as an organization.

The Supreme Court accepted the Club's invitation to rule upon the allegations which must be made to support standing where injury of a non-economic nature has occurred to interests that are widely shared among the public. The Court held that organizational interests are insufficient, but that direct, "individualized" interests would suffice. 2 ELR 20194. Returning to its earlier decisions in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970), and Barlow v. Collins, 397 U.S. 157 (1970), the Court draws attention to the first part of the two-part test for standing set out in those two cases. The first part of the test requires that plaintiffs must allege that an action which they wish to challenge has caused them "injury in fact."¹ The Court takes a broad view of the judicially cognizable interests which may suffer "injury in fact." But it restricts access to the courts to argue these interests to persons who have suffered [2 ELR 10035] "individualized" harm as a result of the challenged activity.

By restricting the class of persons who may initiate judicial review to those who are themselves individually injured, the Court rejected the holdings of several lower courts which have accepted special organizational interests as sufficient to support standing to seek judicial review. Thus the Second Circuit's view that conservation organizations could themselves sue as "responsible representatives of the public" was overturned. Citizens Committee for the Hudson Valley v. Volpe, 425 F.2d 97, 105. The Court thereby made a "rough attempt" to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. 2 ELR 20196.Further, the Court foreclosed litigation over the difficult distinctions which courts would be called upon to make in deciding which organizations really represented the "public" and which organizations were old enough, large enough or sincere enough to have developed a bona fide special interest in the litigation. Finally, the Court indirectly answered the question of whether an individual with a bona fide special interest who had suffered no direct personal injury could bring a public interest lawsuit. Apparently a public interest advocate such as Ralph Nader cannot sue unless he has suffered direct personal injury. Nor, apparently, can an organization established to litigate public issues sue unless direct injury to the organization itself has been suffered.

Analysis of the Opinion

Nothing in the Court's opinion indicates that it intended to curtail public interest litigation by narrowing the requirements of standing to seek judicial review. To the contrary, the Court specifically states that its holding on standing leaves the litigation of public interest issues intact. Further, the Court confirms the trend of federal courts toward legal recognition of a wide variety of aesthetic and environmental interests, once standing is obtained. It appears, therefore, that in Sierra Club v. Morton the Court was merely attempting to insure that in any particular controversy the persons with the most at stake had some control over the bringing of the lawsuit. Thus the fact that particular classes of individuals suffer only slight individual harm in some controversies will not mean that the issues cannot be litigated.

The Court reaffirms first that aesthetic, conservational and recreational interests may be legally protected, and second that the fact that harm is widespread is no reason to limit access to the judicial process. Because these two aspects to Sierra Club v. Morton may be viewed as expanding, rather than contracting, the role of courts in the development of environmental law, the relevant portions of the Court's opinion are set out in full here.

The trend of cases arising under the APA and other statutes authorizing judicial review of federal agency action has been towards recognizing that injuries other than economic harm are sufficient to bring a person within the meaning of the statutory language, and towards discarding the notion that an injury that is widely shared is ipso facto not an injury sufficient to provide the basis for judicial review. We noted this development with approval in Data Processing, supra, at 154, in saying that the interest alleged to have been injured "may reflect 'aesthetic, conservational, and recreational" as well as economic values." But broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must have himself suffered an injury. 2 ELR 20195 [footnote omitted]

Elsewhere, with regard to the injury to Mineral King Valley which the Disney development would cause, the Court states:

We do not question that this type of harm may amount to an "injury in fact" sufficient to lay the basis for standing under § 10 of the APA. Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process. But the "injury in fact" test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured. 2 ELR 20194.

The Court twice states specifically that once standing has been established, general public interest issues may be fully litigated. 2 ELR 20195, footnote 12, and 2 ELR 20195, footnote 15. Citing the Sanders and Scripps-Howard cases, the Court confirms that plaintiff may well be a "representative of the public interest" or a "private attorney-general." 2 ELR 20195. Lastly, citing the Button case, the Court points out that "it is clear that an organization whose members are injured may represent those members in a proceeding for judicial review." 2 ELR 20195.

Having thus reconfirmed that the scope of litigable environmental interests is very broad, that the public interest may be asserted in lawsuits on an equal footing with more traditional economic interests, and that organizations may carry their members' causes to the courts, it would indeed be unfortunate if many such public interest lawsuits were now prohibited by a narrow reading of the Court's opinion. Nothing in the opinion indicates that the Court intended such a result. In fact, the Court specifically says:

The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process [emphasis added]. 2 ELR 20195.

The "Individualized" Injury Required

How strict is the individualized injury test? The Court gives almost no guidance in defining the kind, quantity [2 ELR 10036] or manner of "individualized" injury which a plaintiff must allege. The opinion suggests, however, that minimal allegations of individual interest are sufficient.

The Court implies that if the Sierra Club had itself alleged that the Club had conducted trips into Mineral King and that individual Club members used the valley for recreation, these allegations would be sufficient to support standing. The Court points out that the Club may amend its complaint in the district court under Rule 15 of the Federal Rules of Civil Procedure to include these allegations, which were made to the Supreme Court in amici curiae briefs.The Court does not indicate that the frequency and seriousness of use of Mineral King are part of its test.

The Court apparently examined the interests asserted by the various parties in other important environmental lawsuits, including the interests alleged in cases in which the courts adopted a liberal view of organizational standing. The Court implies that the interests asserted were sufficient to meet the Sierra Club v. Morton test. With respect to the cases that took the liberal view, the Court states that "in most, if not all of these cases, at least one party to the proceeding did assert an individualized injury either to himself or, in the case of an organization, to its members." 2 ELR 20195, footnote 14. Thus, in the Hudson River Expressway case, even if the legal test for standing enunciated by the Second Circuit was wrong, the allegations were in fact sufficient to meet the Supreme Court's standard.

Thus in most cases the adequacy of allegations of personal injury will not be difficult to establish. A troublesome category of cases exists, however, for which sufficient individual interests in the controversy may be more difficult to establish. In these cases, "individualized," "direct" interests do not exist in the sense the Supreme Court intends. The public hazard from radiation, various pesticides, air pollutants, and other trace substances is very small and uncertain with respect to any one citizen, but cumulatively dangerous to the population at large. The less visited wilderness is, the more valuable it may be, although few enter it. Interests in endangered species are difficult to establish. An individualized interest in the Bald Eagle, the Desert Pupfish, or the Humpback Whale many hundreds of miles at sea requires an exercise of imagination that taxes the concept of "direct" injury.

Moreover, some types of individual interest which may exist in threats to man or to other species, even if legally acceptable, appear to leave important public concerns unrepresented. The choice of an ornithologist or ichthyologist as plaintiff does not seem likely to reassure some environmental organizations that the public interest which they seek to assert in the species has found the proper champion.

Does Sierra Club v. Morton Impose a "Best Plaintiff" Test?

The Court did not address the problems raised by this category of cases when it set out its test for standing. But its failure should not lead to the conclusion that the Court intended to restrict the substantive issues which may be litigated. To the contrary, the opinion states explicitly that the test for standing will not prevent any public interests from being protected through the judicial process. Nor do the opinion's overall thrust and tone indicate an intent to limit access to the courts, so long as persons with direct interests in the outcome are plaintiffs in the case. As indicated above, the Court is sympathetic to the trend toward expanded protection of widely shared environmental interests.

Hence in difficult cases, where the kind of direct interests which the Sierra Club and its members had in Mineral King Valley are inappropriate, or impossible to imagine, the Court's opinion can be construed as giving the lower courts latitude to allow standing so that admittedly justiciable interests may be represented. If persons with direct interests exist, however, the Court does say that they should be plaintiffs in the action. Thus public interest litigation cannot proceed unless the "best plaintiffs" have alleged their direct, individualized harm over and beyond special organizational interests which may also exist.

The Court Avoids Constitutional Issues

The Court apparently did not think that the issue for decision in Sierra Club v. Morton raised constitutional issues. The opinion focuses upon the Administrative Procedure Act (APA), and not upon the constraints upon judicial power contained in Article III. The Court's approach is fortunate from the perspective of environmental interests. Fewer environmental lawsuits are jeopardized, the chances of prevailing against imminent motions to dismiss in pending cases are increased, and the way remains open to a vast range of litigable controversies so long as an "individualized" interest can be shown.

Although the Court clearly meant to confine its decision to interpretation of the APA, its attempts to do so leave the jurisprudence of standing in some disarray. Without attempting at this time to put to rest the difficult issues involved, ELR raises only a few questions which the opinion inadequately answers.

Section 10 of the APA, 5 U.S.C. § 702, says:

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. ELR 41007.

Early interpretations of § 10 focused upon the words "legal wrong" and adopted "the various formulations of 'legal interest' and 'legal wrong' then prevailing as constitutional requirements of standing [emphasis added]." Sierra Club v. Morton, 2 ELR 20193. Those early cases, set out in footnote 4 of the opinion, took a constrictive view of standing. But the Court says that its opinions in Data Processing and Barlow, supra, interpreted § 10 "more broadly" by establishing a two-pronged [2 ELR 10037] "injury-in-fact" and "zone-of-interest" test. Thus emphasis shifts to the second part of § 10 ("adversely affected or aggrieved"). The implication is that the second branch of § 10 is more permissive and that under it more plaintiffs will be able to obtain standing. Yet the Court's opinion falls far short of articulating this basis for its holding.² Furthermore, a reading of the Data Processing and Barlow cases reveals that these two cases hardly mention § 10 and that when they do, they appear to treat standing as an Article III issue. It is possible that the Court, thrashing about for a way to avoid Article III in Sierra Club v. Morton, has given its two earlier standing cases a strained reading.

Standing under NEPA

Sierra Club v. Morton does not involve the National Environmental Policy Act; however, standing to sue under NEPA is affected by the decision. It can be forcefully argued that standing under NEPA is different from standing under other legislation. NEPA was passed after the courts had gone far to expand the doctrine of standing to sue. In § 101 of NEPA, federal agencies are required to cooperate with "private organizations" in implementing the national environmental policy. In § 102(2) (F), federal agencies are required to make environmental information available to institutions and individuals. And, of course, the legislative history of the Act, an Executive Order, and the case law under NEPA all confirm that, at a minimum, § 102(2) (C) requires public disclosure and public participation in the analysis of 102 statements. Such analysis includes analysis by environmental organizations.

Thus the "injury in fact" which environmental organizations allege in a NEPA lawsuit may be different from injury in other lawsuits. To satisfy the direct injury requirement, which is the first part of the test set out in the Data Processing and Barlow cases, supra, plaintiffs in NEPA cases need only allege injury to their right to know and participate. Because two of NEPA's primary purposes are information-gathering and better policy-making, no better plaintiff with a more relevant interest can be found than one who alleges that the public rights guaranteed by NEPA have been denied. Thus "injury in fact" has occurred.

There is overlap, to be sure, between the "injury-in-fact" branch of the Data Processing and Barlow test and the "zone-of-interests-of-the-relevant-statute" branch of that test. The Court, by omitting entirely from its opinion any discussion of the "zone-of-interests" test, ignores the overlap. By enacting NEPA Congress mandated a process for environmentally relevant decision-making, the denial of access to which is a form of direct injury to a public "conservational" interest. Organizations may suffer this form of injury as directly as its individual members.

Strategies for Environmental Attorneys Who Must Now Cope with the Decision

Undoubtedly, attorneys will have to brief and argue standing more frequently than they did before the Court's decision. This is unfortunate, because the decision was supposed to clarify the doctrine so that pleadings could be more simply and confidently drawn and trial on plaintiffs' standing could be simplified or eliminated. Also, many pending cases will have to be briefed on motions to dismiss for lack of standing.

Special care must be taken in seeking preliminary injunctions. Where preliminary injunctions are all that prevent environmental destruction, the immediate harm which may be caused by summary dismissal is great indeed. Obtaining a preliminary injunction depends upon the courts' assessment of the probability of success on the merits, and that probability is lessened by a more stringent standing test. Further, relief pending appeal will be difficult to obtain.

Where the standing of plaintiffs in pending or about-to-be-filed lawsuits is uncertain, amendment of complaints is recommended, in order to add specificity to existing plaintiffs' allegations of direct injury, or to join plaintiffs who have suffered injury clearly within the Mineral King rule. Complaints should in general be brief and plead facts only; however, the uncertainty brought about by the Court's decision justifies, for the present, more careful plea drafting, which might include appending affidavits setting out in detail the direct injury which plaintiffs have suffered. For instance, plaintiffs who canoe the whitewater of a threatened stream might set out the number of trips taken, over what time period, with what impact on family or individual recreation, etc.

On the other hand, the number of cases pending or about to be brought that are affected by the Court's opinion may in fact be quite shall. A quick survey of the pending cases in ELR's Digest Facsimile Service shows that the majority includes at least one individual plaintiff who alleges direct injury to himself. The Supreme Court observed that most, if not all, of the cases decided under the liberal rule for organizational standing overturned by the Court's decision did in fact include plaintiffs who alleged injuries sufficient to support standing under Sierra Club v. Morton.

As experience with the rule accumulates, the Environmental Law Reporter will continue to cover key problems in litigation under the Sierra Club v. Morton rule. For the most part the federal district courts have not yet indicated how they will interpret the ruling. But ELR notes as it goes to press that a federal district court in San Francisco has denied the Sierra Club, and other environmental and neighborhood groups, standing to challenge the manner of federal participation in the [2 ELR 10038] Yerba Buena urban renewal project.) ELR urges attorneys who are briefing the standing issue to read the analysis of standing cases contained in the amici curiae Brief for the Wilderness Society, Izaak Walton League of America, and Friends of the Earth, especially Part I. ELR Dig. [58] Doc. X 71 pp. ($7.10).

1. The second part of the test, requiring that plaintiffs allege that the injury fell "arguably within the zone of interests to be protected or regulated" by the statutes that the agencies allegedly violated, was expressly excluded from the Court's consideration. 2 ELR 20194, footnote 5.

2. In another part of the opinion, when speaking of the insufficiency of organizational interests to support standing, the Court does refer to the second part of § 10 as setting the standard which plaintiffs must meet under the APA. 2 ELR 20195.