The Revival of the Standing Defense in Environmental Litigation

A recent decision by a federal district judge may signal the revival of the standing question in environmental actions, a defense which had been assumed moribund for the past few years. Judge Aubrey Robinson of the District Court for the District of Columbia, in Animal Welfare Institute v. Richardson,¹ declared that environmental and humane groups lack standing to challenge a National Marine Fisheries Service permit issued pursuant to the Marine Mammal Protection Act (MMPA)² which allows the Fouke Company to import 13,000 Cape fur seal skins taken in the Republic of South Africa. Plaintiffs sought to enjoin issuance of the permit on the ground that it would allow importation of the skins of seals taken in violation of the MMPA. The district court found that plaintiffs had not alleged a sufficient injury in fact to maintain the suit, and both denied injunctive relief and dismissed the action.

Because the Court of Appeals for the D.C. Circuit declined to hear an expedited appeal from the denial of the preliminary injunction,³ the importation and sale of the sealskins are likely to occur before the case can be heard on the regular appeal docket. If the D.C. Circuit does not dismiss the appeal as moot, plaintiffs thus will gain, at most, a hollow legal victory even if they succeed in reversing the district court's ruling. The decision bodes ill for the MMPA, and may, if applied uncritically in conjunction with several recent Supreme Court decisions on standing, chill the prospects of maintaining environmental suits in federal court.

Background

The MMPA imposes a moratorium on the taking and importation of marine mammals and derivative products, but allows the Secretary of Commerce to waive the moratorium and permit importation of marine mammals under certain limitations.⁴ The Fouke Company applied for the permit in question in late 1976,⁵ following the National Marine Fisheries Service's waiver of the statutory moratorium on taking Cape fur seals.⁶ Plaintiffs, the Animal Welfare Institute and the Committee for Humane Legislation, claimed that the government should be enjoined from issuing the permit because it would allow importation of seals taken while they were nursing, seals that were less than eight months old at taking, and seals that were taken in an inhumane manner, all of which are prohibited by the MMPA.

The Standing Decision

Judge Robinson found it unnecessary to reach the merits of the case, however, and dismissed the suit after finding that the plaintiffs had not suffered injury in fact sufficient to satisfy the first half of the threshold standing test enunciated in the 1972 Supreme Court case of Sierra Club v. Morton.⁷ Although the court admitted that the plaintiffs satisfied the second half of the test (that their interest came within the zone of interests protected by the Act) and admitted that aesthetic and environmental concerns deserve legal protection, Judge Robinson nonetheless held that these plaintiffs, and by implication any other non-commercial plaintiffs, could not be injured by the government's granting the permit to import fur seals. Plaintiffs' interest in studying fur seals was insufficient, the court said, as was their interest in the maintenance of a safe and healthful environment for marine mammals. Curiously, the court concluded its argument by noting that standing could not be met in the absence of a special citizen-suit provision [7 ELR 10032] in the MMPA that would allow plaintiffs to function as "private attorneys general."

Injury in Fact and Statutory Standing

This conclusion is especially important in view of the court's assertion that § 104 of the MMPA was inapplicable to the action. Section 104, which authorizes permit issuance, specifically provides, in § 104(d)(6), for judicial review thereof:⁸

Any applicant for a permit, or any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary under this section or of his refusal to issue such a permit. Such review … shall be pursuant to chapter 7 of Title 5 [the Administrative Procedure Act]….

On its face, § 104 seems directly applicable to the permit at issue in Animal Welfare Institute, since plaintiffs were certainly opposed to the permit. The legislative history of this subsection sheds no light on interpreting the provision, other than that the Senate, without comment, added the emphasized language, and the conference committee accepted the change without explanation.⁹ Apparently, the court felt it unnecessary to note that these same plaintiffs had challenged porpoise-taking permits in Committee for Humane Legislation v. Richardson,¹⁰ in which another federal judge from the same district had assumed without elaboration that standing was present. Even though the facts in Committee for Humane Legislation may be distinguishable in that the plaintiffs there could arguably have viewed the porpoises and thus suffered injury from the porpoise taking, Judge Robinson failed to even mention that case.

It may be, although it is not stated in the opinion, that Judge Robinson determined the Administrative Procedure Act (APA) controlled judicial review of the permit issuance, in which case he could properly rely on the Sierra Club v. Morton explication of the requirements for standing. Such a course is not clear-cut, however, The applicable APA section says:¹¹

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.

Thus, while the MMPA requires that judicial review be taken pursuant to the APA, the APA points back to the MMPA's own standing provision as governing who can seek review. The applicable APA phrase, "aggrieved … within the meaning of a relevant statute," brings into play here the MMPA's extension of standing to any "party opposed to a permit." In essence, the MMPA creates rights, i.e., the protection of marine mammals, which are injured by agency issuance of permits sanctioning violations of the MMPA. Thus, any party opposed to a permit is to be considered injured in fact for purposes of judicial review by issuance of that permit.

There are persuasive policy reasons and precedents for this conclusion. Section 104(d)(6) is the only specific provision for judicial review in the MMPA. Absent the broad standing provision contained in this section, non-permittee plaintiffs could meet the Sierra Club v. Morton injury-in-fact test in this case, because, as the court noted, access by Americans to the South African fur seals is contingent upon approval of the South African government. The court seems to suggest that all Americans are on equally non-justiciable footing in this instance, since they lack access to the seal rookeries. This suprising conclusion means that the MMPA's protective provisions are a right without a remedy.

Animal Welfare Institute is the worst possible factual setting under a novel statute that seeks to protect animals not for their interest or utility to humans, but for their intrinsic ecological value. The MMPA defines the primary purpose of marine mammal management to be "to maintain the health and stability of the marine ecosystem."¹² Similarly, the Act defines "humane" in the context of the taking of a marine mammal not in terms of human attitudes but at "that method of taking which involves the least possible degree of pain and suffering practicable to the mammal involved."¹³ Thus, injury in fact to a litigant is, from the start, difficult to allege, and the task becomes impossible when plaintiffs seek to protect animals to which they have no access. Given these statutory purposes, § 104(d)(6) would circumvent the probable difficulty of asserting a user-type injury-in-fact to a commons resource like porpoises or fur seals.Perhaps unwittingly, then, the court, by disallowing standing to human surrogates, lends credence to the dilemma recognized by Christopher Stone when he put forth the theory that natural objects ought to have standing to protect their "rights."¹⁴

Implications of Other Recent Decisions

The chief danger in this decision lies in the possibility that future courts will see it as a cue to apply recent Supreme Court decisions mechanically and deny standing in controversies that should be litigable under existing special statutory standing provisions. Environmental litigation was not significantly hampered by the "user" test of Sierra Club v. Morton, as attenuated in United States v. SCRAP,¹⁵ since potential plaintiffs could easily find and include convenient users of the subject natural resources in order to pass the standing threshold. Subsequent non-environmental cases in which standing has been denied arguably have gone beyond the simple user test by questioning more closely the causal relationship between the alleged violation and the harm to plaintiff. Judge Robinson apparently succumbed to the temptation to apply these non-environmental cases by explicitly relying on the most important of them, Warth v. Seldin.¹⁶

[7 ELR 10033]

In Warth, the Supreme Court held that the non-resident plaintiffs who sought to challenge allegedly discriminatory zoning actions failed to demonstrate a causal nexus between the town of Penfield's restrictive zoning practices and plaintiffs' alleged inability to locate suitable housing in Penfield. The case turned on the absence of third-party desire to build low-cost housing in Penfield combined with the plaintiffs' merely indirect relationship to the zoning ordinances.

Apart from the easy distinction that Warth was not an environmental case, significant language in that decision indicates that the user test needs to be modified in instances, such as Animal Welfare Institute, where no "user" can possibly be found to challenge claimed statutory infractions. In its general discussion of standing in Warth, the Court said that:¹⁷

… Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. III's requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants. E.g., United States v. SCRAP, 412 U.S. 669 (1973). But so long as this requirement is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, and, indeed, may invoke the general public interest in support of their claim. E.g., Sierra Club v. Morton, 405 U.S. 727, at 737 (1972); FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 477 (1940).

In those unusual cases, such as Animal Welfare Institute, where no direct user can ever be found, agency violation of a statutory duty rather than harm to a user of natural resources must be relief upon as the injury which entitles the plaintiff to obtain judicial review. Otherwise, no judicial review of administrative action could possibly be available, for no plaintiff could satisfy the APA standing requirements. The "distinct and palpable injury" required by Warth is satisfied, at least under the MMPA, for persons "opposed to the permit," since, by their very opposition, they distinguish themselves from any generalized interest that other persons may have in protection of marine mammals.

The Supreme Court's refusal in January to review a recent standing decision adds a final note to the Warth test, but does not diminish the foregoing statutory-right-of-standing analysis. In Evans v. Hills,¹⁸ which also involved allegedly discriminatory housing policies, the Second Circuit denied standing to non-residents who raised only the speculative allegation that an award of federal sewerage and park acquisition grants to a city could be used instead to finance low-income housing. This decision clearly does not affect environmental cases where plaintiffs allege specific harm to statutorily created rights that can be enforced only by surrogate plaintiffs.

Further support for the theory that violations of statutory rights constitute injury in fact for standing purposes comes from several cases litigated under the National Environmental Policy Act (NEPA). Jones v. Redevelopment Land Agency,¹⁹ in which plaintiffs sought to block reconstruction of the 14th Street riot area in Washington, D.C., held that NEPA is concerned with the harm that results from decisionmakers' failure to take environmental factors into account in their decisions. Violation of this statutory mandate was thus held to create an injury which served as a basis for judicial intervention. Other recent NEPA cases involving federal facility relocations, including City of Rochester v. U.S. Postal Service²⁰ and Breckinridge v. Schlesinger,²¹ affirm that agency violation of NEPA-created duties constitutes injury in fact to plaintiffs.

More recently, the government has pressed the assertion that the Sierra Club lacks standing to raise a NEPA challenge to the budgetary process for the National Wildlife Refuge System. The district court in Sierra Club v. Morton²² granted summary judgment to plaintiffs on the ground that the Interior Department's Fish and Wildlife Service must prepare an environmental impact statement on annual proposals to fund the Refuge System. Although the district court did not discuss the standing issue, on appeal²³ the government claims that plaintiffs failed to prove that their members use the refuges.²⁴ In addition, the government argues that plaintiffs allege injury only in the abstract in that their use of the refuges cannot be said to be curtailed by proposed cutbacks on appropriations; and furthermore, that NEPA establishes no right in plaintiffs to comment on the environmental impact of the budgetary process. Although the outcome in the court of appeals may depend on the procedural point of whether the evidence is undisputed for purposes of summary judgment, the government's vigorous argument of the issue may indicate the rebirth of a broader policy of challenging standing in environmental cases.

The issue of standing seems to be reviving in environmental litigation in the state courts as well. A decision by the Connecticut Supreme Court, Belford v. City of New Haven,²⁵ casts some doubt on the future vitality of the Connecticut Environmental Protection Act.²⁶ That act, like its model, the Michigan Environmental Protection Act,²⁷ grants standing to any person to sue any other person for the protection of the state's natural [7 ELR 10034] resources.²⁸ Standing under a similar provision has not been a serious issue in Michigan,²⁹ but the Connecticut court denied standing to plaintiffs in Belford to challenge municipal construction of a "mini-olympic" village in two city parks. The court, relying on Sierra Club v. Morton and Warth, said:

The act does not, as the plaintiffs urge, confer standing upon individuals to challenge legislative decisions of a municipality which do not directly threaten the public trust in the air, water and other natural resources of this state.³⁰

The court thus mistakenly put the cart before the horse and used the failure of the plaintiffs to prove the merits of their claim as the basis upon which to deny them standing.

Conclusion

The point to be drawn from all these cases is that courts, and sometimes litigants, seem to be repeating a litany of the Supreme Court standing cases without engaging in the subtle analysis required for new factual or legal situations. Apparently few courts have recognized that the two-pronged Sierra Club v. Morton test may in some instances be telescoped into a single test by assuming the causal connection between the violation of a statutorily-created interest (the "zone of interests") and the alleged injury ("injury in fact"). This refined standing analysis was open to the court in Animal Welfare Institute, even after Judge Robinson had disregarded § 104 of the MMPA. The court's analysis, or lack thereof, in that case effectively leaves challenges to marine mammal taking and importation permits open only to economic competitors of permit grantees, a situation that could hardly have been intended by the framers of the MMPA. This anomaly stems directly from the court's unexplained disregard of a clearly applicable statutory standing provision, a situation of which other courts must be wary lest they fall into a similar trap to deny proper litigants their day in court.

1. 7 ELR20073 (D.D.C. Dec. 23, 1976)

2. 16 U.S.C. §§ 1361 et seq., ELR 41815.

3. Animal Welfare Institute v. Richardson, Nos. 76-2148, 76-2149 (D.C. Cir. Dec. 28, 1976).

4. See generally M. Bean, The Evolution of National Wildlife Law 324-69 (prepublication edition, to be published by the Council on Environmental Quality, Mar. 1977); Gaines & Schmidt, Wildlife Population Management Under the Marine Mammal Protection Act of 1972, 6 ELR 50096 (Sept. 1976).

5. 41 Fed. Reg. 48149 (Nov. 2, 1976).

6. 40 Fed. Reg. 28469 (July 7, 1975). See also 41 Fed. Reg. 7510, 7537 (Feb. 19, 1976) (waiver decision and exceptions). See generally Gaines & Schmidt, supra note 4, at 50108-10.

7. 405 U.S. 727, 2 ELR 20192 (1972).

8. 16 U.S.C. § 1374(d)(6), ELR 41818 (emphasis added).

9. See H. Rep. 92-707, 92d Cong., 1st Sess. 5, 25 (1971); S. Rep. 92-863, 92d Cong., 1st Sess. 17 (1972); H. Rep. 92-1488, 92d Cong., 2d Sess. 10, 24-25 (1972).

10. 414 F. Supp. 297, 6 ELR 20500 (D.D.C.), aff'd 540 F.2d 1141, 6 ELR 20661 (D.C. Cir. 1976).

11. 5 U.S.C. § 702, ELR 41005 (emphasis added).

12. 16 U.S.C. § 1361(6), ELR 41815.

13. 16 U.S.C. § 1362(4), ELR 41816.

14. Stone, Should Trees Have Standing? — Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972).

15. 412 U.S. 669, 3 ELR 20536 (1973).

16. 422 U.S. 490 (1975).

17. 422 U.S. at 514. The Court has recently cited Warth with favor in Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 45 U.S.L.W. 4073, 4076 (Jan. 11, 1977).

18. __ F.2d __, 6 ELR 20527 (2d Cir. 1976), cert. denied, 45 U.S.L.W. 3489 (Jan. 17, 1977).

19. 499 F.2d 502, 4 ELR 20479 (D.C. Cir. 1974).

20. 541 F.2d 967, 6 ELR 20723 (2d Cir. 1976).

21. __ F. Supp. __, 6 ELR 20111 (E.D. Ky. 1975), rev'd on other grounds sub nom. Breckinridge v. Rumsfeld, 537 F.2d 864, 6 ELR 20597 (6th Cir. 1976).

22. 395 F. Supp. 1187, 5 ELR 20383 (D.D.C. 1975).

23. Sierra Club v. Kleppe, No. 75-1871 (D.C. Cir., filed Dec. 22, 1975), ELR Doc. [421], ELR 65343.

24. See Sierra Club v. Morton, 514 F.2d 856, 869 n. 20, 5 ELR 20463, 20468 n. 20 (D.C. Cir. 1975), rev'd sub nom. Kleppe v. Sierra Club, 427 U.S. __, 96 S. Ct. 2718, 6 ELR 20532 (1976).

25. 364 A.2d 194, 7 ELR 20084 (Conn. Sup. Ct. Dec. 30, 1975).

26. Conn. Gen. Stat. §§ 22a-15 et seq.

27. Mich. Comp. Laws Ann. §§ 691.1201 et seq., ELR 43001.

28. Conn. Gen. Stat. § 22a-16.

29. Haynes, Michigan's Environmental Protection Act in Its Sixth Year: Substantive Environmental Law from Citizen Suits, 6 ELR 50067, 50085 (Sept. 1976).

30. Belford v. City of New Haven, 7 ELR 20084, 20086 (Conn. Sup. Ct. Dec. 30, 1975).