Recent Cases on Standing

Standing lingers as a problem for environmental groups, whose lawyers, even after Sierra Club v. Morton, 2 ELR 20192 (U.S. April 19, 1972), must continue to brief and argue the point. The trend of the cases, however, definitely continues toward liberalized standing, as ELR suggested in our earlier Comment on the Mineral King decision (2 ELR 10034). Although a number of federal courts have been required to consider whether environmental organizations can bring suit in their own name after the Supreme Court's ruling, only three decisions have actually denied standing to such groups, and two of those decisions are clearly incorrect. The trend of the decisions is toward a wide recognition that environmental groups may be so involved as organizations in representing the ecological interests of their members that the organizations are as well qualified as anyone to bring suit. In any event, although groups may wish to have standing for themselves on the basis of minimal allegations of interest and harm, the Mineral King decision appears to require only minor changes in pleading so that individuals or named members allege specific harm.

Several post-Mineral King cases deserve mention. In Environmental Defense Fund v. Environmental Protection Agency, 2 ELR 20228 (D.C. Cir. May 5, 1972), an appeal by a nationwide membership organization from EPA's refusal to suspend all registered uses of the pesticides Aldrin and Dieldrin pending final decision on cancellation under the Federal Insecticide, Fungicide and Rodenticide Act, the court held that EDF had standing. EDF had participated in the administrative proceedings which led to the appeal, and the government had failed to question whether EDF was a "person who will be adversely affected" by an order (7 U.S.C. § 135b(d)). Acting sua sponte, the court reviewed the Mineral King decision and concluded that it:

… makes clear that the Court is retaining all of its decisions establishing a "modernized law of standing" so as (a) to embrace injury in fact, suffered or anticipated, to environmental — including aesthetic, conservational and recreational — as well as economic interests; (b) to prohibit dismissal of a litigation where there is an "arguable" claim of injury; and (c) to permit the person who has standing by virtue of present or future injury to particular interests to urge grounds of objection based on "public interest," acting in this respect as a "private attorney general." 2 ELR 20229

The court recognized that the Mineral King decision "permits an organization to conduct litigation on the basis of injury to its members" and noted that EDF had alleged that it was composed of "citizens dedicated to the protection of our environment." The court held that such an allegation afforded EDF standing to represent its members, who were concerned about the release to the biosphere of the carcinogenic agents contained in the pesticides. Dangers to health, which constitute perhaps a core case of injury-in-fact, are not exclusive to members of EDF, but the court noted that the Mineral King decision had specifically found that widely shared environmental interests were not barred from judicial protection.

The court concluded that the litigation should proceed on the assumption that the governmenthad recognized that any objection to EDF's standing was merely an inconsequential matter of pleading. If the government chose to dispute the holding, the court was willing to permit EDF on remand to amend in order to "refine its allegations of interest."

The interpretation of the Mineral King decision which the District of Columbia Circuit adopted supports the view that the Supreme Court's decision establishes a "best plaintiff" test for standing to sue in the public interest. See the ELR Comment (2 ELR 10034). Individualized, direct injury to known persons may be difficult to show in certain classes of controversies. Thus, the public hazard from low-level background exposure to Aldrin and Dieldrin may well be substantial, but the harm to any one citizen may be very small or uncertain.Similar controversies may also occur regarding a seldom-visited wilderness or an endangered species, both of which may suffer harms difficult to associate with given individuals.As ELR earlier pointed out, the failure of the Court to confront this category of cases does not justify the conclusion that no one will have [2 ELR 10195] standing to raise such issues. Instead, the Mineral King decision can be read as requiring only that in any particular controversy the person (or his organizational representative) with the most at stake should retain some control over the bringing and the course of the lawsuit.

In Sierra Club v. Ruckelshaus, 2 ELR 20262 (D.D.C. May 30, 1972), organizations alleging that deterioration of air quality would affect their members were permitted to challenge EPA's approval of state implementation plans under the Clean Air Amendments of 1970. In Conservation Society of Southern Vermont v. Volpe, 2 ELR 20270 (D. Vt. June 2, 1972), individual residents and a conservation society with many local residents were permitted to challenge a highway undertaking. (In that case, incidentally, an association of railway passengers failed to show that their members had an individualized, personal stake in the outcome of the suit.) In Wilderness Society v. Morton, 2 ELR 20250 (D.C. Cir. May 11, 1972), the district court was ordered to consider the status of the Canadian intervenors in the Trans-Alaska Pipeline case and to permit them to amend their complaint if necessary so that they might represent their members' viewpoints in court. And in Environmental Defense Fund, Inc. v. Corps of Engineers (Gillham Dam), 2 ELR 20353 (E.D. Ark. May 5, 1972), the court permitted EDF to amend its complaint to allege that its members used the free-flowing Cossatot River for canoeing.

Decisions Denying Standing

The three decisions which question standing for environmental organizations are Ward v. Ackroyd, 2 ELR 20450 (D. Md. June 8, 1972), San Francisco Tomorrow v. Romney, 2 ELR 20273 (N.D. Calif. April 24, 1972) and Coalition for the Environment v. Linclay, 2 ELR 20557 (E.D. Mo. Aug. 17, 1972). In Ward, an individual plaintiff joined with the Sierra Club, the Natural Resources Defense Council and a local highway group in an effort to enjoin construction of part of the Interstate Highway System planned to pass through two Baltimore city parks. The court found that the Sierra Club's allegations that it had 600 members in the Baltimore area, organized as the Greater Baltimore Group of the Potomac Chapter, and that the Group organized hikes and outings in the affected parks were sufficient to satisfy the test set forth in the Mineral King decision. Likewise, the local group opposed to the expressway (VOLPE, Inc.) had sponsored outings in the parks, and nearly all of its members used and expected to continue to use the parks. NRDC raised different issues:

As to NRDC, however, I find that it has not alleged the requisite injury to afford it standing to maintain an action in this proceeding. The only allegation made by it with any relation to injury is that it is "dedicated to preventing the unnecessary and unlawful destruction of the natural resources and human environment of the United States." This allegation, I believe and hold, is "a mere interest" in a problem and is insufficient to maintain standing. Accordingly, plaintiff NRDC will be dismissed from this proceeding for lack of standing. 2 ELR at 20409.

NRDC's allegations resemble those of the Sierra Club in the Mineral King case. They lack the specificity which the Supreme Court has held must be provided to support organizational standing. NRDC's action in not spelling out its interests, however, is an oversight only in retrospect; although many environmental groups have been at pains all along to join with individuals in bringing environmental lawsuits, and to spell out the basis of their asserted standing, NRDC was supported in its minimal allegation by impressive district and circuit court opinions and by the weight of critical opinion on the direction which subsequent Supreme Court decisions on standing would take. The court in Ward v. Ackroyd, faced with new law to apply subsequent to the parties' original allegations on standing, should have adopted the approach of the D.C. Circuit in EDF v. EPA, supra, and at the very least allowed NRDC to amend its pleadings, file affidavits, etc., in an attempt to show the specificity of interest necessary to satisfy the Mineral King rule.

Two recent decisions stand entirely outside the trend of the law toward liberalized standing. The first of these, San Francisco Tomorrow v. Romney, 2 ELR 20273 (N.D. Calif. April 24, 1972), is unlikely to be upheld on review. (In fact, during the summer Mr. Justice Douglas enjoined the project at issue in the case until the Ninth Circuit has had an opportunity to consider plaintiffs' standing.) In this case, the Sierra Club (which has a high concentration of its membership in the San Francisco area), a local membership organization concerned with sound urban planning, and several individuals living in the immediate vicinity all challenged two urban renewal projects on the ground that they had been approved by the United States Department of Housing and Urban Development before an evaluation of their environmental impact and a study of alternatives had been conducted. Disposing of the question briefly, without reviewing the many cases on standing or analyzing the Mineral King decision, the court first determined that courts have granted standing only where the "plaintiff has borne some special relationship to the statute or to its subject matter." The court found "that no provision of NEPA contemplates general public involvement," and therefore mere members of the public had no standing to raise NEPA issues. Second, the court also determined that:

in no instance to which we have been referred or which we have found has it been held that one with a mere nonpecuniary interest in the subject matter of a statute … hasstanding to sue thereunder. 2 ELR 20274.

The court is incorrect in both its assertions concerning standing. Although the court's first assertion appears to allude to the "zone of interest" test articulated by the Supreme Court, the judgment made about the [2 ELR 10196] zone of interest of NEPA overlooks contrary language in the Act itself, as well as regulations and cases decided under it. NEPA contains explicit directions to the federal agencies to involve citizens in decisions affecting the environment. Section 101(a) declares that "it is the continuing policy of the Federal Government, in cooperation with … concerned public and private organizations …" to undertake environmentally sound planninv. Section 102(2)(F) requires federal agencies to make information available to "institutions an individuals" useful in "restoring, maintaining, and enhancing the quality of the environment." The Guidelines for federal agencies prepared by the Council on Environmental Quality direct the agencies to submit draft statements to CEQ "together with all comments received thereon by the responsible agency from … private organizations and individuals." Executive Order 11514 (March 5, 1970), ELR 45003, directs federal agencies to "develop procedures to ensure the fullest practicable provision of timely public information … in order to obtain the views of interested parties." The Order further makes an indirect reference to the right of the public to "relevant information" which must include Section 102 Statements at a minimum. Finally, scores of cases decided under NEPA hold that private individuals and organizations have a right to compel an agency to prepare a Section 102 statement.

The court's second assertion, that a pecuniary interest is required in order to obtain standing, is even less tenable. The Supreme Court dealt explicitly with this issue:

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 saying that the interests alleged to have been injured "may reflect 'aesthetic, conservational, and recreational' as well as economic values." Sierra Club v. Morton, 2 ELR 20195.

In a footnote to this passage, the Court listed as examples five cases in which courts had protected non-economic interests of plaintiffs. This footnote within a Supreme Court opinion cited by the San Francisco Tomorrow court makes its statement that it had found "no instance" of non-economic harm supporting standing even more startling. No other court has so badly misread the Mineral King decision.

In the second case, Coalition for the Environment v. Linclay, 2 ELR 20557 (E.D. Mo. Aug. 17, 1972), plaintiffs, which included three individual plaintiffs and three citizens groups (the Coalition for the Environment, St. Louis Region, Citizens for a Healthful Environment, and St. Charles Enthusiasts for a Natural Environment) sought to challenge the construction of Earth City, a 1,700-acre, residential, commercial and light-industrial development in St. Louis, Missouri. The court granted leave to file an amended complaint but found that the amendments were inadequate to support plaintiffs' standing. Citing the Mineral King decision and San Francisco Tomorrow, supra, the court could not find allegations of "individualized harm," especially of economic harm, which were adequate to support standing.

The court simply does not discuss the standing of the three plaintiff organizations. With respect to the three individual plaintiffs, the court examines the proximity of their residences to the site, the extent of their use of the site, and the possibility of economic depreciation of theif property if the project is built, and concludes that none of these bears out the allegations of potential harm. Thus, for the three individuals who live within three miles of the site and who, like the other plaintiffs, alleged that they would be affected because the development would increase air and noise pollution, create traffic jams and foreclose to St. Louis the use of the area as a regional park, the court concluded:

There is nothing in the record indicating that any of the plaintiffs will be affected in their activities by the actions of defendants, much less significantly affected. 2 ELR 20558.

Echoing language in the Ninth Circuit's decision in the Mineral King case (1 ELR 20015), the court finds that defendants' actions are merely "personally displeasing or distasteful" to plaintiffs and trace to a difference in philosophy over land use planning.

The objections to such a denial of standing under NEPA voiced above in connection with San Francisco Tomorrow v. Romney, supra, apply here with equal force. Further, the court's concept of injury, while not clearly articulated, is clearly not as broad as it is in the majority of recent standing decisions. The decision should be reversed.

Corporate Plaintiffs' Standing under NEPA

An earlier ELR Comment (2 ELR 10034) gave attention to the special issue of standing to sue under NEPA. In essence, the Comment argued that under the Mineral King decision, citizens' groups may have standing in their own right, separate from that of individual members, because they may suffer organizational injury if they are denied the right, as organizations, to attempt to enforce NEPA's guarantees of public information and participation in agency decision-making. Now recent decisions and recently filed litigation present yet another aspect of the problem, with the focus not on citizens' groups, but on industry as plaintiff. Corporate plaintiffs have begun to seek to compel federal agencies, especially the Environmental Protection Agency, to comply with NEPA's requirement that adequate impact statements be filed. It is not yet clear that the industrial corporations' new-found interest in NEPA stems from a desire to join with their frequent adversaries, the citizens' environmental groups, in attempting to force the federal agencies toward a greater measure of environmental [2 ELR 10197] protection by requiring them to comply to the letter with NEPA. In some instances NEPA suits originated by industry can have exactly the opposite effect by showing much-needed agency action to protect the environment. In short, when used exclusively for delay, the suits have the undesirable effect of turning NEPA against the very interests which it was enacted to protect.

Standing may be denied to corporate plaintiffs under the second part of the test for standing developed in Data Processing and Camp and confirmed in the Mineral King decision, where NEPA is the only statute invoked and plaintiffs are unable to show that the interests which they seek to protect arguably lie within the zone of interests protected by NEPA. Situations will not often arise where NEPA affords the only jurisdictional basis available to corporations seeking to sue an agency which is about to take an environmentally protective step inimical to corporate interests. Further, in some instances corporate plaintiffs may be able to argue successfully that NEPA creates a zone of interests which at least "arguably" protects industry. Statutory language regarding the balancing of interests may be viewed by a court as broadening the zone of NEPA interests beyond the primary environmental ones to others alluded to in the statute. Nevertheless, courts can and should refuse standing when NEPA is the only basis for suit and when plaintiffs are cynically seeking delay by arguing that en-environmental factors have not been fully taken into account in the impact statement.

The view that corporate plaintiffs may be denied standing depends upon the second part of the now familiar two-part test for standing set out in the Data Processing and Barlow cases.¹ The first part of the test requires that plaintiffs suffer "injury in fact." Sierra Club v. Morton is concerned uniquely with this part of the test. The second part of the test requires that plaintiffs' injury arguably lie within the zone of interests protected by the relevant statute.

Corporate interests may well be injured in fact by proposed agency actions; corporate plaintiffs' interests thus will almost invariably qualify under the traditional test of possible economic harm. But it is not at all clear that corporate plaintiffs may allege that the interests which they usually seek to protect even arguably lie within the zone of interests which NEPA protects. NEPA is quintessentially an environmental protection statute; while it includes language indicating that impact statements must include discussion of a broad range of factors, clearly the impact statement is intended to be an assessment of threatened environmental harm and not an assessment of economic injury or dislocation which may be caused by the agency's action. Granted, both economic and technical data may appear in an impact statement where the reasonableness of an alternative is discussed. Suchimpacts may be considered in the final agency decision-making process, and in fact NEPA's language in Section 101 appears to contemplate this result, but impact statement preparation antedates final agency balancing or "trading off" of economic and environmental harms. The impact statement supplies one component — the adverse environmental impact — of overall agency decision-making.

The leading case on this point is regarded as National Helium Co. v. Morton, 1 ELR 20157 (D. Kan. 1971), aff'd 1 ELR 20478 (10th Cir. 1971).² In that case an oil company subsidiary which had government contracts to extract helium from natural gas was granted standing and successfully blocked the termination of their contract on the ground that no NEPA Section 102 study had been made of the environmental impact of cancellation on the helium supply. However, National Helium was decided before Sierra Club v. Morton and can be distinguished on at least two grounds from the case (discussed infra) which actually denies NEPA standing to corporate interests. The public interest which National Helium allegedly sought to protect was quite similar in important respects to the private interest advanced. The public and the company would both be injured if a full study were not conducted of the venting of a valuable natural resource to the atmosphere. One may readily imagine a citizens' group, which in similar circumstances would seek a NEPA statement on the venting of natural gas to the atmosphere, alleging the wastage of a less polluting fossil fuel. Conceivably, the group could also object to the venting of helium, in NEPA § 102(2)(c)(v)'s words, an "irreversible and irretrievable" commitment of natural resources. In short, the interests of plaintiff corporation and [2 ELR 10198] the public in not wasting a natural resource dovetail in the facts of National Helium; in the class of cases discussed here, the private interest usually is inimical to the public one and more often than not the private interest urged will result directly in the pollution, destruction or consumption, not the preservation, of a natural resource or environmental amenity.

The Tenth Circuit granted the company standing, but it did so uneasily. Both the district and circuit courts remarked that it was "passing strange" that the oil subsidiary was playing a public interest role, but nevertheless granted the company standing to sue. The Tenth Circuit said:

We are unable to say that the companies are motivated solely by protection of their own pecuniary interest and that the public interest aspect is so infinitesimal that it ought to be disregarded altogether. It is not part of our function to weigh or proportion these conflicting interests. Nor are we called upon to determine whether persons seeking to advance the public interest are indeed conscientious and sincere in their efforts. True, the plaintiffs are not primarily dedicated to ecological improvement, but they are not on this account disqualified from seeking to advance such an interest. 1 ELR 20479.

One district court opinion strongly supports the view on corporate NEPA standing advanced here. In Zlotnick v. District of Columbia Redevelopment Land Agency, 2 ELR 20235 (D.D.C. March 3, 1972), Judge Gerhard Gesell dismissed a suit by downtown property owners to enjoin condemnation of their land for urban renewal, holding that they could not compel the preparation of a more adequate impact statement, because they had only their own financial interests in mind. Their environmental concern was, to say the least, remote and speculative and beyond the zone of interests which NEPA protects. The court said:

To date the Federal Courts have been extremely liberal in permitting almost anyone to interpose environmental objections [footnote omitted] It would appear, however, that unless a modicum of common sense is interposed against this trend, the Act may well be misused by private commercial interests to obfuscate and delay essential federal projects to the real detriment of the very environmental and community interests the Act was designed to protect. 2 ELR 20236.

And elsewhere:

It is not enough that an inadequate environmental impact statement may have been filed for these very preliminary stages of a much larger project that will take years to complete. To have standing grounded on a federal statute plaintiffs must assert an interest "arguably within the zone of interests to be protected or regulated by the statute … in question." Association of Data Processing Serv. Organizations, Inc. v. Camp. 397 U.S. 150, 153 (1970); Blackhawk Heating & Plumbing Co. v. Driver, __ U.S. App. D.C. __, __, 433 F.2d 1137, 1140 (1970) Plaintiffs can at best claim only a remote, insubstantial, highly speculative and ephemeral interest in the environment. They have nothing but their own financial interest to protect as their continuing efforts to achieve financial settlement emphasize. Obviously they would abandon their environmental concerns in a moment if the price were right. 2 ELR 20236.

And finally:

It would be a severe blow to progress in this city if the self-centered interest of the plaintiffs put forward at this late stage were permitted to delay implementation of the Plan which has now been under intensive discussion for some years. 2 ELR 20236.

A second district court opinion, Pizitz v. Volpe, 2 ELR 20378 (M.D., Ala. May 1, 1972), aff'd 2 ELR 20379 (5th Cir. July 11, 1972), lends strong support to the theory of Zlotnick, but in dicta. In Pizitz, businessmen unsuccessfully sought to enjoin further construction of certain highway overpasses because the impact statement for the projects was allegedly inadequate. Although in the end the court held that the impact statement fully evaluated environmental effects and that defendants had complied with all of NEPA's procedural requirements, it did characterize the suit as a "spurious" NEPA case:

The Court has characterized plaintiffs' case as "spurious" because, as the pleadings reflect, plaintiffs' primary concern in filing and prosecuting this litigation was to avert a threatened loss of business. The environmental aspects of the case were brought in only to maintain the action. Of course, the National Environmental Policy Act was not designed to prevent loss of profits, but was intended only to promote governmental awareness of environmental problems. Nevertheless, plaintiffs have invoked the provisions of this Act seeking to enjoin future construction on the Huntsville Memorial Parkway, and this Court has considered the case accordingly. 2 ELR 20378.

Having thus characterized the lawsuit, the court does not explain why it does not dismiss for lack of standing. One possible reason may be that the court felt that on appeal a finding that the impact statement was adequate would be more defensible than a finding that plaintiffs' case could not even be heard. (In fact, the circuit court did affirm.) Another possible reason may be that the court did intend to convey through the cited passage, albeit ambiguously, that plaintiffs lacked standing (theirs was a "spurious" suit), but if they did have standing, they could not prevail on the merits. In any event, the case is similar to National Helium and Zlotnick in its distaste for the use to which plaintiffs attempted to put NEPA.

The case law thus does not clearly reveal a trend toward either denying or allowing corporate plaintiffs standing under NEPA. Here we have argued that the better view is to deny standing where no other basis for standing exists, where the plaintiffs' and the public's interests are disparate, and where the plaintiff obviously is invoking NEPA merely to delay an environmentally protective measure which is about to be taken by a federal agency. The point of this analysis is not to block the use of the courts where industry has a legitimate environmental interest to raise (viz. National Helium), nor [2 ELR 10199] to narrow the scope of standing for industry while broadening it for pro-environmental citizens' organizations. Rather, the objective is to establish an outer limit to the second part of the Supreme Court's test by applying, in Judge Gesell's words, "a modicum of common sense" to the zone-of-interests criterion.

1. … In Association of Data Processing Organizations, Inc. v. Camp, 397 U.S. 150, and Barlow v. Collins, 397 U.S. 157, decided the same day, we held that persons had standing to obtain judicial review of federal agency action under § 10 of the APA where they had alleged that the challenged action had caused them "injury in fact," and where the alleged injury was to an interest "arguably within the zone of interests to be protected or regulated" by the statutes that the agencies were claimed to have violated. Sierra Club v. Morton, 2 ELR 20194.

Some critics deprecate the second part of the two-part Supreme Court test as meaningless or reiterative, e.g., J. Gelin, "Standing to Sue," Lands and Natural Resources Division Journal (May, 1972), p. 1. But obviously injury-in-fact is an insufficient test alone. There must be some logical nexus between plaintiff's cause and the statutes upon which he relies.

2. The court in Getty Oil v. Ruckelshaus, 2 ELR 20393 (D. Del. 1972), appears to rely on National Helium to grant Getty standing to sue EPA under NEPA.The court's footnote on standing merely says, "with respect to Getty's standing to raise its NEPA argument," see National Helium. Getty Oil v. Ruckelshaus, 2 ELR 20393, 20395. As ELR goes to press, it has received the opinion of the Third Circuit remanding the Getty Oil case to the district court and ordering that it be dismissed for lack of jurisdiction. Getty Oil Co. v. Ruckelshaus, 2 ELR 20683 (3rd Cir. Sept. 12, 1972). NEPA standing was not discussed on appeal.