Lujan v. Defenders of Wildlife: The Supreme Court's Slash and Burn Approach to Environmental Standing

23 ELR 10031 | Environmental Law Reporter | copyright © 1993 | All rights reserved


Lujan v. Defenders of Wildlife: The Supreme Court's Slash and Burn Approach to Environmental Standing

Karin P. Sheldon

Editors' Summary: Lujan v. Defenders of Wildlife (Defenders), the Supreme Court's June 1992, decision limiting environmentalists' standing to challenge agency programs, envisions judges' roles in environmental law strikingly different than the roles judges have often played before. Justice Scalia's plurality opinion articulates a limited role for the judiciary, anchored in the belief that government's programmatic decisions and rules of general application are normally inappropriate for judicial review. Justice Scalia had previewed this doctrine in his majority opinion in a 1990 landmark decision, Lujan v. National Wildlife Federation (NWF). However, Justice Scalia's 1992 opinion moves beyond his opinion in NWF, focussing not only on the standing requirement of injury in fact, but the redressability requirement as well. Moreover, his opinion limits the applicability of the citizen suit provision of the Endangered Species Act, and by association comparable provisions in a number of other environmental statutes. In this Article, the author builds on her prior work, NWF v. Lujan: Justice Scalia Restricts Environmental Standing to Constrain the Courts, 20 ELR 10557 (1990), examining Justice Scalia's 1992 opinion and the direction he appears to be leading the Supreme Court in environmental standing cases. The author reviews the essential principles of standing, provides a summary of the Defenders litigation and its significance, and considers some tactical options for environmental practitioners.

Ms. Sheldon is Vice President for Conservation and General Counsel of The Wilderness Society, a national environmental organization dedicated to the preservation of wilderness and the protection and wise management of the public lands. She also teaches federal natural resources law at George Washington University Law School.

[23 ELR 10031]

For the second time in two years, Justice Scalia has led the Supreme Court on a "slash-and-burn expedition"1 through the law of environmental standing.2 The most recent context for this excursion was Lujan v. Defenders of Wildlife (Defenders),3 a challenge by Defenders of Wildlife and two other environmental groups (Defenders)4 to the Interior Department's recision of a regulation requiring federal agencies to consult with the Fish and Wildlife Service (FWS) to determine the potential impact of federal actions abroad on federally protected endangered species.

In Defenders Justice Scalia explicitly revealed his theory of standing as an essential element of the separation-of-powers doctrine. Building on his majority opinion in Lujan v. National Wildlife Federation (NWF), in which the Court ruled that the injury in fact necessary to support standing must be geographically specific, or close in place,5 Justice Scalia's plurality opinion in Defenders ruled that the injury in fact must be temporally specific, close in time, and that plaintiffs must establish the components of standing as matters of fact. Defenders had no standing because their members could not prove they had immediate plans to observe endangered species at the sites of federal actions abroad. They could show no distinct injury other than that their interests in endangered species and in seeing the Endangered Species Act (ESA) enforced were defeated by recision of the regulation.6

Justice Scalia also used Defenders as an opportunity to reinforce his view that programmatic decisions and rules of general application are generally unsuited for judicial review. In NWF, the National Wildlife Federation's challenge to an agency program was not ripe until applied in a specific action;7 in Defenders, Defenders' injury was not caused, and, therefore, could not be redressed by a general regulation directing federal agencies to comply with the ESA abroad.8 Finally, Justice Scalia constricted the citizen suit provision of the ESA,9 and by implication similar provisions in a host of other environmental statutes. His opinion held that Congress cannot create a procedural injury that gives rise to standing by conferring on all persons "an abstract, self-contained" right to have agencies comply with the law.10

In the wake of NWF and Defenders, environmental groups and their lawyers are left wondering, as did Justice Blackmun in his dissent, whether they suffer some "special constitutional standing disabilities"11 in the eyes of the Supreme Court. More importantly, it is unclear what [23 ELR 10032] they must do in the future to ensure that they can overcome the standing hurdle and continue their efforts to protect environmental resources.

This Article offers some thoughts on these concerns, based on an evaluation of Justice Scalia's opinion in Defenders and the direction he appears to be taking the Court in environmental standing cases. It begins with a summary of the fundamental principles of standing, discussed in greater detail in NWF v. Lujan: Justice Scalia Restricts Environmental Standing to Constrain the Courts,12 and a synopsis of the Defenders litigation and its implications. Finally, the Article considers some tactical options for environmental practitioners.

Reprise of the General Principles of Standing

Standing law asks a would-be plaintiff, "What's it to you?"13 and demands a specific answer. The fundamental purpose of requiring that plaintiffs meet its requirements is to ensure that only those persons with a direct stake in the outcome of a dispute be allowed to invoke the jurisdiction of a court to resolve it.14 Standing maintains the separation of powers among the branches of government. It ensures that the judiciary will not be called upon to decide "abstract questions of wide public significance which amount to generalized grievances, pervasively shared and most appropriately addressed in the representative branches."15

Constitutional Requirements

Article III of the U.S. Constitution limits the jurisdiction of courts to actual "cases" and "controversies."16 Over the years, as summarized in Valley Forge Christian College v. Americans United for the Separation of Church & State, Supreme Court decisions have established a three-part test for Article III standing. A plaintiff must demonstrate, as an "irreducible minimum," (1) that "he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," (2) that the injury "fairly can be traced to the challenged action," and (3) that the injury "is likely to be redressed by a favorable decision."17

[]Injury. Recent Supreme Court decisions, including both NWF and Defenders, have focused particular attention on the injury requirement.18 Since Sierra Club v. Morton,19 the Court has found injury to non-economic, widely shared environmental interests to be sufficient to support standing. However, it has repeatedly emphasized the requirement of a particularized showing of harm. For an environmental-group plaintiff, this means a demonstration that individual members have suffered, or will suffer, injury to their personal environmental, aesthetic, and recreational interests. Mere membership in the plaintiff organization is not enough, nor is the organization's special interest in the subject matter of the lawsuit.

The necessary discrete harm is generally shown by alleging that members use the particular land area that will be adversely affected by a proposed agency action or decision for recreational, aesthetic, or environmental purposes. It is the "use" of the environmental resources at issue that gives rise to standing to object to an action that may affect them.20

Lower courts have interpreted the "use" requirement with increasing stringency over the last several years, and, in the wake of NWF and now Defenders, are likely to continue to do so. In The Wilderness Society v. Griles,21 for example, the D.C. Circuit denied standing to the environmental plaintiff because, although it was uncontroverted that the challenged action of the Department of the Interior would decrease the amount of federal lands available for the use andenjoyment of The Wilderness Society's members, it could not prove that any of its members used the exact lands subject to the Interior Department's action.

[]Causation. The requirement of causation directs a plaintiff to demonstrate that his alleged injury is fairly traceable to the conduct of the defendant.22 The causation element of standing helps to prevent courts from being asked to be "continuing monitors of the wisdom and soundness of Executive action."23 An injury must be reasonably imminent to warrant judicial involvement. Remote or speculative injuries do not support standing, because they do not constitute true cases or controversies. Governmental actions or decisions that may cause injury must be final.24 In the absence of a final decision, a matter is not ripe for review.25

Causation need not be proved with absolute certainty, but a plaintiff must show a substantial likelihood that the defendant's action will result in the injury claimed.26 This substantial likelihood is often "substantially more difficult to establish" in cases in which the agency acts against a third party whose expected response in turn will injure the plaintiff.27 In those circumstances, causation "ordinarily hing[es] on the response of the regulated (or regulable) third party to the government action or inaction…."28 Nonetheless, many courts, including the Supreme Court, have recognized standing for plaintiffs injured by third parties responding to government action.29

[23 ELR 10033]

[] Redressability. To meet the third prong of the Valley Forge test for constitutional standing, a plaintiff must show that the relief requested from the court is likely to remedy the injury alleged.30 The Supreme Court has noted that, like causation, it is particularly difficult to prove redressability in suits challenging agency programs or rules of general applicability, as opposed to proving it in suits based on specifically identified violations of law.31 Indeed, in Defenders, the lack of redressability was "the most obvious problem" with Defenders' allegations of standing, because it was not clear that the change sought in the regulation would result in consultation that would protect endangered species.32

[] Prudential Requirements. Beyond the core constitutional requirements of Article III, there are prudential limitations on standing. Prudential restrictions include the requirement that a plaintiff assert his own legal rights and interests, not those of a third party. These interests must be specific, not "generalized grievances," and must fall within the "zone of interests" protected by the statute under which the case is brought.33

Statutory Standing

Congress may confer standing by statute and has done so in the Administrative Procedure Act (APA)34 and environmental statutes containing citizen suit provisions that authorize any "person" or "citizen" to bring suit to enforce the statute.35 Prior to the 1991-92 Supreme Court term, in cases involving statutory grants of standing, the Supreme Court generally has not required any showing of injury beyond violation of the statute.36 In Defenders, however, the Court limited statutory grants of standing by explicitly rejecting the principle that injury in fact can be satisfied by reference to a citizen suit provision that confers a right to have the executive branch satisfy legally required procedures.37 A plaintiff must show that the violation of the statute "endangers a concrete interest apart from having the procedures observed."38

Proof of Standing

Under current Supreme Court jurisprudence, standing is not merely a pleading requirement, but rather an indispensable part of a plaintiff's case. Each element of standing must be supported in the same way as any other matter on which a plaintiff has the burden of proof.39 The level of proof required depends upon the stage of the litigation in which standing is challenged. When challenged on a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, the factual allegations in the complaint are construed in a plaintiff's favor. When challenged on a motion for summary judgment under Rule 56(c), however, a plaintiff is not entitled to favorable inferences and must prove its allegations as a matter of fact.40

Lujan v. Defenders of Wildlife

The Supreme Court's ruling that Defenders of Wildlife lacked standing, and the Court's construction of the ESA's citizen suit provision, both are best understood in the context of the opinions of the district court and court of appeals, and the operating judicial philosophy of Justice Scalia.

Background

The Endangered Species Act (ESA) of 197341 has as its purpose the conservation42 of plants and animals threatened with extinction by the activities of human beings.43 In the ESA, Congress declares that "the United States has pledged itself as a sovereign state in the international community to conserve threatened and endangered species to the extent practicable…."44 The Act requires the Secretary of the Interior to list species that are endangered or threatened according to certain criteria and to define their critical habitats.45 More than half of [23 ELR 10034] the species on the endangered species list have primary ranges outside the United States.46

To fulfill the Act's purposes, § 7(a)(2)47 requires each federal agency to "consult" with the Secretary of the Interior or the Secretary of Commerce48 to "insure that any action authorized, funded or carried out by such agency … is not likely to jeopardize the continued existence" of any threatened or endangered species.49 Through this consultation process, the Department of the Interior's FWS evaluates the potential impacts of an agency's proposed action on the affected species. The FWS issues an opinion describing those effects.50 If it concludes that the action may jeopardize a protected species, it must propose "reasonable and prudent alternatives" that will avoid this result.51 After consultation, a final decision about whether to proceed with the action lies with the agency. The FWS does not have veto authority over the conduct of other federal agencies.52

In 1978, the Secretary of the Interior issued a regulation stating that the consultation obligations of § 7(a)(2) extended to federal actions abroad.53 On June 3, 1986, this rule was rescinded. The consultation requirement was limited to actions taken within the United States or on the high seas.54

The Litigation

Shortly after the new rule was promulgated, Defenders of Wildlife, Friends of Animals and Their Environment, and the Humane Society of the United States (Defenders) filed suit against the Secretary of the Interior seeking a declaratory judgment that the new rule violated the ESA, particularly § 7(a)(2), and an injunction requiring the Secretary to restore the original interpretation of the statutory language.55 Defenders brought the action under the citizen suit provisions of the ESA and the APA. The ESA's citizen suit provision authorizes "any person" to "commence a civil suit on his own behalf … to enjoin any person, including the United States … who is alleged to be in violation of any provision of this Act or regulation issued under the authority thereof…."56 The APA's citizen suit provision entitles any "person … adversely affected or aggrieved by agency action within the meaning of a relevant statute … to judicial review" of that action.57 Defenders stated that their interests and those of their members in the conservation of endangered species, were directly within the zone of interests meant to be protected by the ESA.58

To demonstrate their standing to maintain the action, Defenders contended that their members benefitted both professionally and personally from observing threatened and endangered species.59 They produced affidavits of members who described their interests in endangered species and trips they had taken overseas to observe and study them. The affiants discussed visiting the proposed sites of projects to be funded and carried out, at least in part, by federal agencies. The sites were in habitats of endangered species, and the development of the projects without consultation under § 7, according to the affiants, would have serious consequences both for the habitat and the species themselves.60

Defenders also advanced three other theories of standing, arguing that their members had standing under each. Under the "ecosystem nexus" theory, Defenders claimed that their members were persons using part of a contiguous ecosystem adversely affected by a federally funded project or activity and thus had standing, even if the project or activity was some distance away. Under the "animal nexus" theory, Defenders claimed that their members were persons with an interest in studying or seeing endangered species and thus had standing. Finally, Defenders averred that under the "vocational nexus" theory, their members were persons with a professional interest in such animals, and thus had standing.61

The district court dismissed the case for lack of standing.62 Using the tests articulated in Valley Forge63 and Allen v. Wright,64 the court held that Defenders had not shown an injury traceable to the Secretary's change in the regulation. Defenders failed to allege "any specific agency action in foreign countries that have [sic] adversely affected endangered species as a result of the Secretary's reinterpretation of § 7." Without such a specific showing, Defenders' claims rested on their general interest in the proper enforcement of the ESA which, although "admirable," did not constitute a sufficient injury for purposes of Article III standing.65

The district court did not discuss the nexus theories. It did, however, reject several prudential limitations raised by the Secretary. It found that it lacked the authority to create prudential barriers in lawsuits brought to enjoin violations of the ESA, because Congress expressly "augmented" standing through the Act's citizen suit provision.66

On appeal, the Court of Appeals for the Eighth Circuit also relied on the all-purpose standing formula set forth in Valley Forge, but reversed the district court.67 Disagreeing [23 ELR 10035] with the lower court's ruling that Defenders' interest in the proper enforcement of the ESA was insufficient to support standing, it held that agency violations of statutorily mandated procedures constitute injury in fact.68 The appellate court additionally found that the injury to the professional and aesthetic interests alleged by Defenders was traceable to the Secretary's action in promulgating the new regulation and was likely to be redressed by a return to the original interpretation of § 7. The court's principle rationale for this ruling was that Congress had legislated causation and redressability in the ESA. "We agree with Defenders' contention that Congress determined that the remedy for harm to its members' professional and aesthetic interests in endangered species is consultation between the Secretary and the action agency."69 Thus, Defenders was not required to enjoin particular projects or to prove that such projects would, in fact, harm endangered species. An injunction directing the Secretary to publish a regulation mandating consultation for foreign, as well as domestic, projects sufficed, because consultation would "foreclose the possibility that serious harm to endangered species will be overlooked."70

On remand to the district court, the Secretary moved for summary judgment on the standing issue. The Secretary argued that the Eighth Circuit's standing decision was made in the context of a motion to dismiss, where all factual allegations are construed on behalf of the plaintiff. On a motion for summary judgment, a plaintiff must prove standing without the benefit of inferences in its favor. According to the Secretary, Defenders failed to carry that burden, because they did not show that any members used the area around any foreign project likely to affect endangered species that was funded or undertaken by federal agencies.71

The district court refused to reconsider the standing issue. It held that the Secretary's new arguments did not warrant an analysis different from the one provided by the court of appeals. The court decided the merits of the case in Defenders' favor and ordered the Secretary to publish a new regulation.72 The Secretary appealed.

The Eighth Circuit reviewed the issue of injury under the summary judgment standard of Rule 56 of the Federal Rules of Civil Procedure. Once again, it concluded that Defenders had met the applicable burden of proof by providing specific facts about past and future use of particular areas abroad that might be affected by agency projects.73 The court also held that Defenders had satisfied the standing requirements by demonstrating a procedural injury based on the Secretary's failure to follow required consultation procedures. It reiterated its earlier holding that "Congress intended to bestow procedural rights upon environmental organizations such as Defenders." The inclusion in the ESA of a citizen suit provision allowing "any person" to commence an action to enjoin violations of the Act in combination with the statute's ambitious purposes "shows clearly that Congress viewed the value of endangered species as 'incalculable'."74

The Supreme Court Decision

[] The Plurality Opinion. In a splintered 7 to 2 decision,75 the Supreme Court reversed the Eighth Circuit. The Court ruled that Defenders had not demonstrated standing to challenge the Secretary's recision of the regulation extending the ESA's consultation requirement to agency actions abroad. It did not reach the merits of the Secretary's action.

The Court determined that Defenders had not met the three-part test for constitutional standing articulated in Valley Forge,76 Warth v. Seldin,77 Sierra Club v. Morton,78 and related cases. Defenders had failed to prove (1) that their members had suffered injury in fact, (2) that the injury of which they complained was causally connected to the challenged conduct of the defendant and not the result of independent action of third parties not before the Court, and (3) that it was likely, not merely speculative, that the injury would be redressed by a favorable decision.79

[] Injury. The Supreme Court confirmed that "the desire to use or observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for purposes of standing."80 But a cognizable interest is not sufficient to satisfy the injury-in-fact test, particularly in the context of a summary judgment challenge. To survive the Secretary's summary judgment motion, Defenders had to prove not only that listed species were, in fact, threatened by federally funded activities abroad, but also that "one or more of [their] members would thereby be directly affected apart from their 'special interest' in the subject."81

The deficiency in Defenders' proof of injury related less to its existence than to its immediacy.82 The Court held that Defenders' affidavits contained no facts showing how the damage to endangered species caused by the projects would result in "imminent injury" to the affiants. Thus, their claim of injury remained "speculative" and "conjectural." Past visits by the affiants to project sites counted for nought, and professions of interest in returning [23 ELR 10036] to the sites of projects that imperiled protected species were "simply not enough."83

The Court also rejected Defenders' nexus theories of standing. It found the ecosystem nexus approach inconsistent with the ruling in NWF that a plaintiff claiming injury from environmental damage must use the exact area affected by the challenged activity.84 Both the animal and vocational nexus theories were dismissed as "beyond all reason,"85 because of the absence of a factual showing of discrete and particularized harm to individual members of Defenders.

[] Causation and Redressability. The Supreme Court emphasized the difficulty of establishing standing in cases in which a plaintiff asserts injury arising from the government's regulation of third-party conduct. Such cases present problems of proof of causation and redressability, and "even when premised on allegations of several instances of violations of law, … [are] rarely if ever appropriate for federal court adjudication."86 The Court held that any relief that could be provided would be incomplete, because the agencies authorizing and funding the overseas projects of concern to Defenders were not parties to the case. The Secretary of the Interior could be ordered to reinstate the regulation requiring consultation for foreign projects, but he could not compel the agencies to comply with it. The Court concluded that the issue of whether the agencies were bound by the Secretary's regulation was "very much an open question."87 It contrasted those parts of the ESA that are explicit about the Secretary's authority with the consultation provisions, which "arguably" give the agencies discretion as to whether consultation is required.88 The Court also noted that the Solicitor General had repudiated the Secretary's earlier position that the regulation was binding.89

[] Citizen Suit Provision. None of these portions of the Supreme Court's opinion were "new news." Strict proof of injury has been required by various lower courts for some time, and the trend toward limiting challenges of programmatic decisions was apparent even before NWF. The real surprise in Defenders is Justice Scalia's machete work on the citizen suit provision of the ESA. Determined to create a bright line between the legislative and the judicial branches of government, the Justice slashed far into the accepted understanding of the effect such provisions have on the proof required to establish standing.

The ESA citizen suit provision provides that "any person" may sue to enjoin "any person," including the United States, "alleged to be in violation of any provision" of the Act or regulation issued under the authority thereof.90 The Eighth Circuit found Defenders had standing, because they were "procedurally injured." The Secretary's refusal to consult on overseas projects violated statutory procedures. Moreover, Congress, through the citizen suit provision, has given Defenders, and others, a right to seek redress of these inquiries.91

For Justice Scalia, this ruling went too far. Congress may create procedural rights, the invasion of which is a legal injury, but that injury alone will not support standing. A plaintiff must show that he has suffered a distinct harm, separate from both the harm done to the general public by the procedural injury and his special interest in the subject matter of the procedures at issue. To allow the Eighth Circuit's ruling to stand would permit the injury-in-fact requirement to be satisfied by "congressional conferral upon all persons of an abstract, self-contained, non-instrumental 'right' to have the Executive observe the procedures required by law."92 This is not acceptable, because "a generally available grievance about government … that no more directly and tangibly [affects the plaintiff] than it does the public at large does not state an Article III case or controversy."93 Congress cannot "convert the undifferentiated public interest in executive officers' compliance with the law into an individual right vindicable in the courts…."94

Why is it that Congress cannot confer such a right? Because of the separation of powers among the branches of government. According to Justice Scalia, to permit Congress to ignore the concrete injury requirement

would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch — one of the essential elements that identifies those "Cases" and "Controversies" that are the business of the courts rather than of the political branches…. Vindicating the public interest (including the public interest in government [23 ELR 10037] observance of the Constitution and laws) is the function of Congress and the Chief Executive.95

] [ The Concurring Opinions. On these points, the views of Justice Scalia and the plurality are not shared by the other members of the Court. Justices Kennedy and Souter, although they agreed that Defenders' members did not prove they were "among the injured,"96 did not wholeheartedly support Justice Scalia's analysis of the citizen suit provision. Justices Stevens, O'Connor, and Blackmun forcefully disagreed.

The Kennedy/Souter concurrence gently reminded Justice Scalia that "Modern litigation has progressed far from the paradigm of Marbury suing Madison to get his commission…."97 The Justices affirm that Congress has the power to "define injuries and articulate chains of causation" that give rise to cases and controversies that did not exist at common law.98 While they acknowledge an outer limit to this power as a "direct and necessary consequence" of the case or controversy requirement of Article III, the importance of this limit is less to confine the courts to their "proper" role in protecting individuals and minorities than to "preserve the vitality of the adversarial process by assuring" that the parties to a lawsuit have a personal stake in the outcome.99 It does not matter to Justices Kennedy and Souter how many people are injured by a challenged action, as long as the party bringing suit can show a concrete and personal harm.100

The shortcoming of the ESA's citizen suit provision, according to the Kennedy/Souter concurrence, is its failure to identify the particular injury for which it provides access to judicial redress and to relate that injury to the class of persons authorized to bring suit. The statute confers on "any person" a right to sue for a violation of "any provision" of the Act, but it does not define the injury that is caused by the violation.101 "It does not of its own force establish that there is an injury in 'any person' by virtue of any 'violation.'"102

Justices Kennedy and Souter also expressed reservations with the plurality's view of the nexus theories. They agreed that the record in the case did not support standing on any of the proffered nexus theories. They left the door open to the application of such a theory in the future however, noting that "in different circumstances a nexus theory similar to those proffered here might support a claim to standing.103

Justice Stevens also filed a concurring opinion. He disagreed with the conclusions of the plurality and Justices Kennedy and Souter on the standing issue, but decided, on the merits, that the ESA was not intended to apply overseas.104 With respect to standing he wrote, "a person who has visited the critical habitat of an endangered species, has a professional interest in preserving the species and its habitat, and intends to revisit them in the future has standing to challenge agency action that threatens their destruction."105 He based this judgment on Congress' finding, set forth in the ESA, that endangered species are of "aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."106 Thus, the Court was not free to "demean the importance of the interest" that particular persons might have in observing endangered species.107

Justice Stevens found that Defenders had adequately shown that their members had suffered sufficient injury in fact to give them a personal stake in the outcome of the litigation. He determined that the "imminence of such an injury should be measured by the timing and likelihood of the … harm," not "by the time that might elapse" before an individual might visit the potentially affected area.108 An injury to an individual's interest in studying or enjoying an endangered species occurs under the ESA when an action that harms species or habitat is taken. The focus of his analysis was not, therefore, the travel plans of Defenders' members, but their interest in studying and observing endangered species.109

Justice Stevens also took issue with the plurality's conclusion that Defenders' injuries were not redressable by a favorable ruling on their claims. He concluded that government agencies would comply with a ruling from the Supreme Court that the ESA mandated consultation for overseas projects. Moreover, such agencies could influence foreign governments to modify their projects to mitigate harm to endangered species.110

] [ The Dissent. Justices Blackmun and O'Connor dissented in a forceful and scathing opinion. They disagreed with Justice Scalia's opinion on at least four points. First, they determined that the majority had not applied the correct standard for determining whether Defenders should survive the government's motion for summary judgment. To satisfy Rule 56(c), Defenders' burden was to show only the existence of a genuine issue of material fact as to standing; they were not required to prove that they were actually or imminently harmed.111 Second, the dissent observed that the rejection of the nexus theories in Justice Scalia's opinion indicated a grave misunderstanding of the injury caused to Defenders' members by damage to endangered species. Justice Blackmun charged the plurality with creating "rigid principles of geographic formalism" and applying them, without justification, to environmental claims. "As I understand it, environmental plaintiffs are under no special

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[23 ELR 10039]

lems related to judicial interference in areas committed to other branches of the Federal government."124 The separation-of-powers doctrine is used to help determine whether a dispute is justiciable, while the standing inquiry is used to discern whether the party before the court has a stake in the outcome. To qualify for judicial review, a plaintiff need demonstrate only "a logical nexus between the status asserted and the claim sought to be adjudicated."125

For many years, such a nexus was relatively easy for environmental plaintiffs to establish. The enactment of environmental statutes — such as the National Environmental Policy Act, the Clean Air Act, the Federal Water Pollution Control Act (FWPCA), and the ESA — most of which include citizen suit provisions, made this all the more so. Commentators observed that the requirement of proving standing in environmental cases "seemed destined for oblivion,"126 or at least "reduced from a significant doctrinal barrier to a nettlesome technicality."127

The shift in the Supreme Court's approach began in the mid-1970s, under the more conservative leadership of Chief Justice Burger, as the Supreme Court began to link standing to separation-of-powers issues.128 In Schlesinger v. Reservists Committee to Stop the War129 and United States v. Richardson,130 decided the same day, the Court connected the injury-in-fact test to the separation of powers. Both of these cases are mentioned in Justice Scalia's opinion in Defenders as supportive of the proposition that the Supreme Court has "consistently held" that a plaintiff raising only

a generally available grievance about government — claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy.131

Then, in Warth v. Seldin, often cited with approval by Justice Scalia, the Court ruled that, under the separation-of-powers doctrine, "the article III judicial power exists only to redress or otherwise to protect against injury to the complaining party."132 Finally, two decisions in the early 1980s, Valley Forge and Allen v. Wright, expressly joined as "a single basic idea" the doctrines of standing and separation of powers.133

Justice Scalia's Bright-Line Theory

It is no accident that all of these opinions, especially Valley Forge and Allen, figure prominently in the Defenders decision. They reflect Justice Scalia's own thinking about the appropriate role of the courts. Given the opportunity, first in NWF and then in Defenders, Justice Scalia applied the separation-of-powers theory to standing in environmental cases. Unfortunately, he has done so in a way that promotes his "anachronistically formal"134 notions of government, distorts the standing doctrine as it is currently understood and applied, and ignores Congress' intent in enacting citizen suit provisions.

To appreciate fully the significance that Justice Scalia imports to standing in the overall maintenance of the separation of powers requires an understanding of his concept of constitutional government. As commentators have observed, Justice Scalia's model of government is formalistic, rather than functional and pragmatic.135 The central constitutional standard defining institutional roles in the administration of government is not federalism.136 He believes that the framers of the Constitution drew bright lines around the three branches of government in order to confine the branches to their assigned roles. "If the division of federal powers central to the constitutional scheme is to succeed in its objective, it seems to me that the fundamental nature of those powers must be preserved as that nature was understood when the Constitution was enacted."137

Under this formalistic model, the powers of each branch are exclusive, not equal. Some administrative power is concentrated in the executive branch that can be constrained by the other branches only as they exercise their exclusive powers, or by the electoral and political processes.138 The role of the judicial branch is to protect individuals and minorities from the tyranny of the majority, not to "prescribe how the other two branches should function."139 Except when an individual has suffered a specific and concrete injury at the hands of the executive branch, courts do not check and balance actions assigned to that branch by the Constitution. To allow them to do so would involve them in the political policy process and permit them to second-guess administrative expertise.140

Justice Scalia objects to the "liberalized" law of standing. He finds that it improperly injects the judicial branch into the executive branch's realm by too quickly presenting the courts with issues previously determined to be beyond the scope of their powers; this undermines the political process, converting political decisions into legal decisions. Liberalized standing has interfered as well with the executive [23 ELR 10040] branch's authority to modify or nullify laws through its failure to enforce them.141 As the good Justice himself has written,

Does what I have said mean that, so long as no minority interests are affected, "important legislative purposes, heralded in the halls of Congress [can be] lost or misdirected in the vast hallways of the federal bureaucracy?" Of course it does — and a good thing too.142

Further, courts have been "specifically designed to be bad" at determining majoritarian legislative policies.143 Where they are asked to enforce executive adherence to policies that the political process has not compelled, they are likely to express "the political prejudices of their own class."144 Justice Scalia cites the lenient application of standing law in environmental cases as the prime example of the classicism of the courts. "Their greatest success in such an enterprise — ensuring strict enforcement of the environmental laws, … met with approval in the classrooms of Cambridge and New Haven, but not in the factories of Detroit and the mines of West Virginia."145

Apparently, environmental lawyers have failed to convince Justice Scalia that all members of the public benefit from a clean environment and a healthy workplace. The Justice's cavalier dismissal of environmental laws and the role environmental groups play in achieving compliance with them makes light of significant social goals and trivializes the work of environmental groups and their lawyers. The mocking tone that runs through his opinions is troubling. One would expect a more temperate and judicial voice from a member of the Supreme Court, regardless of his underlying legal and philosophical opinions.

Justice Scalia's theology of constitutional government has not met widespread support, even among his colleagues on the Court.146 As Professor Sunstein has noted, although there is superficial appeal to the notion that law enforcement is inherently an executive function that should not be usurped by the courts, it ignores the duty to enforce duly enacted laws that is imposed by the Constitution on the President. The executive is not free to lose or misdirect important legislative purposes, and one significant role of the courts is to ensure that it does not. A court order compelling performance of this constitutional obligation does not, therefore, violate the separation of powers.147

Furthermore, the belief that "majoritarian" harms are the concern of the political branches, while the courts exist only to redress individual, "nonmajoritarian" harms ignores the reality that they are often one and the same. Consequently, that an injury is widespread is not necessarily determinative of its appropriateness for judicial review. If the doctrine of standing is designed to prevent courts from hearing abstract questions and to ensure that the parties before them have a direct and personal stake in the outcome, the number of persons affected makes no difference, as long as those who have chosen to invoke their jurisdiction meet the standing requirements. This is a point made by Justices Kennedy and Souter in their concurrence148 and echoed in Justice Blackmun's dissent.

Justice Scalia's ideology blinds him to the pluralistic, conflicted, and highly political nature of current federal executive and legislative processes. Things have changed in the United States since Marbury sued Madison for his commission. It is not the courts that need to be restrained, but the executive. The body of environmental case law is made up of instances in which federal agencies have deliberately disregarded or disobeyed duly enacted statutes, often for political reasons. For example, in the litigation over protection of the northern spotted owl in the Pacific Northwest, the district court concluded that the record established "a remarkable series of violations of the environmental laws" by the U.S. Forest Service.

More is involved here than a simple failure by an agency to comply with its governing statute. The most recent violation … exemplifies a deliberate and systematic refusal by the Forest Service and the [Fish and Wildlife Service] to comply with the laws protecting wildlife. This is not the doing of the scientists, foresters, rangers, and others at the working levels of these agencies. It reflects decisions made by higher authorities in the executive branch of government.149

If the controversy over the spotted owl were a singular or isolated circumstance, Justice Scalia's theory of exclusive and coordinate powers might have more appeal. However, without the checks and balances of the other branches, particularly the judiciary, the potential for abuse of authority, to which he alludes,150 will continue to be a reality. Unfortunately, it comes at the expense of the public good, as well as the legitimate and constitutionally designated roles of the legislature and the judiciary.

Citizen Suit Provisions Under the Bright-Line Model

The existence in Defenders of a claim under the ESA citizen suit provision gave Justice Scalia the opportunity to maneuver the law of standing even further in the direction of his concept of the "original understanding." It is here that his opinion departs most radically from previously established law.

As Justice Scalia conceives the Framers' intent in defining the roles of the three branches of government, Congress' function is to enact clear and precise laws for the executive branch to implement without interference.151 Congress' primary check on the executive branch is the establishment of uniform administrative procedures for agency action. After [23 ELR 10041] that, the duty to "take care that the laws be faithfully executed" belongs under the Constitution to the executive branch.152 Under this arrangement, "majoritarian" concerns must be raised through the political and electoral processes.153 Congress cannot by statute designate a minority group so broad that it embraces virtually the entire population and endow it with a right to complain in court that a law is not being properly enforced. Whereas Justices Kennedy and Souter do not care how many people are affected by an executive agency's action, as long as the parties before the court can demonstrate a personal stake in the outcome of the litigation,154 Justice Scalia regards the widespread nature of an injury, not as a discretionary prudential consideration in determining standing, but as a determinative aspect of the standing inquiry and a core requirement of Article III.155 Thus some concrete injury is so widely shared among the public that even a congressional grant of standing does not "suffice to mark out a subgroup of the body politic requiring judicial protection."156

Justice Scalia's concept of standing is decidedly at odds with the underlying purpose of citizen suit provisions. These provisions do not seek to mark out a minority group needing judicial protection, but rather to authorize individuals and groups to sue as private attorneys general to vindicate the public interest in environmental protection.157 Citizen suit provisions represent Congress' response to the widespread public "skepticism, if not despair," of the 1970s regarding effective environmental law enforcement.158 In 1972, for example, the Senate report on the FWPCA noted almost a complete lack of enforcement of the statute's directives.159 Through the enactment of citizen suit provisions, Congress sought to "motivate" government agencies to bring enforcement and abatement proceedings by allowing concerned citizens to seek implementation and enforcement of these laws.160 By giving citizens access to legal tools, Congress also intended to "open wide the opportunities for the public to participate in a meaningful way in the decisions of government,"161 and to permit them to protect their interests in the environment. Senator Muskie noted during the Clean Air Act debates that "the state and local governments have not responded adequately…. It is clear that enforcement must be toughened if we are to meet the statutory deadline. More tools are needed…. [The citizen suit provision] extends the concept of public participation to the enforcement process."162 Since 1970, virtually all federal environmental statutes have included citizen suit provisions.163

Congress acknowledged the need to meet the constitutional requirements for standing in its citizen suit provisions. Following the Supreme Court's decision in Sierra Club v. Morton,164 Congress incorporated into the citizen suit provision of the FWPCA the test for environmental standing developed in that opinion. The Conference Committee Report for the legislation indicates that the conferees changed the statutory definition of the "citizen" entitled to bring suit to conform with the Supreme Court's standing formula in Sierra Club.165 These examples indicate that Congress did not intend to designate a minority group so broad that it embraced the entire population, but rather to enlist interested, affected parties in the achievement of significant public purposes through the judicial process. Further, Congress has done so in a way that observes constitutional standing principles.

Until Defenders, courts, generally, enthusiastically approved of the private attorney general role fostered by citizen suit provisions, finding that public participation in the enforcement process promotes statutory goals, as well as administrative efficiency.166 They declined the invitation of defendants to push citizen suit standing in the direction of personal injury suits and did not require the kind of proof of individualized harm, causation, or redressability demanded in private damage actions.167 Even the Supreme Court required no showing of injury, beyond violation of the statute.168

This judicial approval of Congress' determination that "any person" has a sufficient interest to sue to protect an environmental resource led Professor Rodgers to observe that "citizen suit provisions should be read as doing away with the necessity for the normal 'injury in fact' standing allegations." No constitutional difficulty is presented by congressional grants of standing to citizens, because the statutory definition of "citizen" — "a person with an interest that may be adversely affected" — meets the Article III case or controversy requirement by mandating a personal stake in the outcome of the litigation.169

Other commentators agree. Jeffrey Miller, for example, concludes that the requirement of injury in fact is surplusage [23 ELR 10042] when a validly enacted statute authorizes affected individuals to act as private attorneys general to protect the public interest. In such circumstances, there is a real dispute brought to court by a party whom Congress intended and authorized to raise it. Thus, the requirements of Article III are met.170

Implications of the Defenders Decision

Given his strong influence on the Court, Justice Scalia's separation-of-powers theory will color all cases implicating the public interest — whether it be civil rights or reproductive choice. It will affect issues of environmental protection most of all, because they are the most widely shared and thus, according to Justice Scalia, least appropriate for judicial review. In a real sense, then, environmentalists do suffer a "special constitutional standing disability."171 Yet without access to the courts, enforcement of legislative determinations of the public good, restraint of an often lawless executive branch, prevention of injury, and vindication of the public interest would be virtually impossible. Justice Scalia's answer that environmental advocates seek help from the legislative or executive branches is at best backwards and at worst no answer at all. Most environmental lawsuits seek enforcement of, or compliance with, law that is clear on its face. When the executive refuses to respond, a return trip to Congress hardly seems a solution.

It is too early to say with certainty how the lower courts will apply the Defenders approach to standing. Indications are that they will work through the allegations of injury offered by plaintiffs to see that they are specific, individualized, and imminent. Distinctions may be drawn between unusual circumstances, such as the overseas application of the standing doctrine in Defenders, and the more usual case of regular use and enjoyment of accessible sites.172

It is even less clear what the courts will require to establish standing under citizen suit provisions. The Supreme Court's rulings on the ESA's citizen suit provision leaves in doubt its constitutional validity, although the Court did not make any explicit rulings on that question. In the wake of Defenders, the lower courts can be expected to be more cautious in reviewing standing in actions brought under such provisions.

Concern in Congress about the chilling effect of Defenders on enforcement of the ESA has already prompted legislative action. Senator Metzenbaum has introduced a bill to "fix" the decision. His "Endangered Species Act Amendments of 1992" amend the ESA's citizen suit provision to provide that:

an action by the Federal Government, the government of a State or political subdivision of a State, or a private party that adversely affects the endangered or threatened species or the habitat of an endangered or threatened species injures each person with a demonstrated aesthetic, ecological, educational, historical, professional, recreational, or scientific interest in endangered or threatened species or the habitat of [such species]….

The legislation also makes explicit Congress' intent that the ESA's consultation provisions apply overseas.173

Senator Metzenbaum's quick response is an indication of Congress' commitment to protection of species and to the concept of citizen suits. His language more closely follows the definition of "injury" recommended by Justices Kennedy and Souter. It seems fair to say, however, that any person who fits the amendments' definition of interested person would be able to prove injury in fact independent of the statutory grant of standing and would not need to rely on it.

What Can Practitioners Do?

The Defenders decision does not end environmental group standing. Its most likely result, as predicted by Justice Blackmun, is to usher in a period of pleading formalism that will be time consuming and costly, but will not fundamentally alter who brings environmental issues to court. Strategic thinking, careful drafting, and the wise choice of claims should succeed in keeping the courthouse doors open. Some advice may be useful.

] [ Evaluate Standing Carefully. The Defenders decision, like NWF, does require environmental lawyers to approach standing differently than they have in the past. Standing must be the first thing they think of in case preparation, not the last. It should be evaluated critically as part of the decision to bring a particular case. Appealing legal issues without the proper advocates should be avoided.

] [ Draft Pleadings Strategically. Injury in the context of standing is a somewhat mutable concept. That is to say, how it is defined will determine causation, redressability, and potentially, success on the merits. This point was made by Justice Stevens in his concurring opinion. Because he defined the injury to Defenders' members as the harm done by overseas projects to their interest in studying or observing endangered species, he was not concerned with the causation and redressability questions raised by the other members of the majority. He was satisfied that Defenders had standing to sue. Environmental practitioners should bear this in mind, drafting their claims with regard to proof of injury, causation, and redressability.

Practitioners should also consider the issue of standing when they decide which defendants to name. The redressability issue is particularly difficult when a plaintiff seeks to change the conduct of a third party not before the court by suing a second party and demanding that it bring about the change. If the third party can logically be included as a defendant, it will ease the burden of establishing the elements of standing. It is clear that Defenders' chances of success on the merits would have been enhanced by the inclusion of an agency with responsibility for an overseas project as a defendant.

] [ Develop the Proof. This is the most critical part of establishing standing. Environmental lawyers must give time [23 ELR 10043] and attention, before a case is filed, to developing the proof necessary to withstand a standing challenge. Affidavits from members of client groups who are injured by the potential defendant's action must describe, in a concrete and particularized way, the interests of the affiants and how the proposed action affects those interests. The affidavits should be as specific as possible about the land areas used, the frequency of use, plans for continued and future use, and the precise nature of the harm done. The affidavits must also describe an injury that is distinct from the injury suffered by the general public. Violation of the law alone is not a sufficient harm.

Expect the Attack. Standing has now become a weapon that can be used by a defendant at any point in a lengthy litigation. Environmental lawyers must recognize the tactical advantage for a defendant, or a court for that matter, of using standing to dispose of a case. They must expect and be prepared for the standing challenge. Remember that pleadings that are sufficient to withstand a motion to dismiss may not be adequate to support a motion for summary judgment, and a court may not permit the pleadings to be remedied. As a preemptive matter, therefore, practitioners may want to prepare and file with the complaint affidavits sufficient to withstand a motion for summary judgment.

Consider Bundling Claims. As noted in my earlier article, programmatic challenges have become more difficult to bring, raising the prospect of having to fight issues out on a case-by-case basis. This has obvious drawbacks in the time and resource commitments necessary to establish broadly applicable legal principles and the risk of conflicting court decisions. The case-by-case approach is inefficient and much resource damage can occur while environmental lawyers wend their way through the court system.

One response to this problem is to select a group of circumstances that present the same legal issue in order to maximize the applicability of the resulting decision. Standing and ripeness are more readily established by doing so. Moreover, bundling fact situations shows a court that a decision with broad applicability is appropriate.

Treat Citizen Suit Provisions With Care. In the wake of Defenders, it seems best to treat citizen suit provisions as an expression of congressional intent to provide a right of action to some members of the public. The standing obligation for the environmental lawyer is to prove that the members of the client organization are within the group intended by Congress to have that right; they have the requisite interest within the zone of interests protected by the statute; they have suffered a discrete injury to that interest, caused by the action of the defendant and redressable by the court order sought. In short, a citizen suit provision eliminates prudential limitations on standing; constitutional requirements remain.

Conclusion

It seems odd to most environmental lawyers that Justice Scalia expresses such fear of the judicial branch. He focuses on the need toconstrain it, to prevent its allegedly classist tendencies from distorting the public interest. For most of us, however, the past 20 years of successful environmental litigation is not a distortion of the public interest, but rather a testament to the commitment of the public, not only to protecting the environment, but to the rule of law, as articulated by the courts.

The legal culture in the United States has as an ideal that administrative agency decisions are, and should be, open to challenge by members of the public. Many courts have fulfilled this ideal, and continue to do so, by finding that harm to widely shared interests of the public can sustain standing for several members of the public to dispute government actions that harm those interests. Our experience with a heavily politicized executive branch and a legislature seeking to reflect the best interests of an increasingly complex society indicates that this is a good and effective thing. Because of this ideal, and because of the values and resources at stake, environmental attorneys must, and will, continue to work to secure standing in court for their clients and themselves.

1. The phrase is from Justice Blackmun's dissent in Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2160, 22 ELR 20913, 20927 (1992). Justice Blackmun said, in full, "I cannot join the Court on what amounts to a slash-and-burn expedition through the law of environmental standing."

2. The first expedition — Lujan v. National Wildlife Fed'n (NWF), 110 S. Ct. 3177, 20 ELR 20962 (1990) — was the subject of discussion in Karin Sheldon, NWF v. Lujan: Justice Scalia Restricts Environmental Standing to Constrain the Courts, 20 ELR 10557 (Dec. 1990).

3. 112 S. Ct. 2130, 22 ELR 20913 (1992).

4. The environmental plaintiffs in Defenders are referred to collectively as Defenders in this Article.

5. NWF, 110 S. Ct. at 3189, 20 ELR at 20966-67.

6. 112 S. Ct. at 2138, 22 ELR at 20916.

7. NWF, 110 S. Ct. at 3190, 20 ELR at 20967.

8. 112 S. Ct. at 2140-42, 22 ELR at 20917-18.

9. ESA § 11(g), 16 U.S.C. § 1540(g), ELR STAT. ESA 025 (1985).

10. 112 S. Ct. at 2143, 22 ELR at 20918.

11. Id. at 2154, 22 ELR at 20924 (Blackmun, J., dissenting).

12. Sheldon, supra note 2, at 10558-60.

13. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881 (1983).

14. See Baker v. Carr, 369 U.S. 186, 204 (1962).

15. Valley Forge Christian College v. Americans United for the Separation of Church & State, 454 U.S. 464, 475 (1982).

16. U.S. CONST. art. III, § 2, cl. 1.

17. Valley Forge, 454 U.S. at 472.

18. NWF, 110 S. Ct. 3177, 3186, 20 ELR 20962, 20965 (1990); Defenders, 112 S. Ct. 2130, 2137-39, 22 ELR 20913, 20916-17 (1992).

19. 405 U.S. 727, 2 ELR 20192 (1972).

20. Id. at 735, 2 ELR at 20195.

21. 824 F.2d 4 (D.C. Cir. 1987).

22. See Warth v. Seldin, 422 U.S. 490, 505 (1975).

23. Allen v. Wright, 468 U.S. 737, 769 (1984) (quoting Laird v. Tatum, 408 U.S. 1, 15 (1972)).

24. Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967); Administrative Procedure Act, 5 U.S.C. § 704, ELR STAT. APA 007 (1977).

25. NWF, 110 S. Ct. 3177, 3189-91, 20 ELR 20962, 20967-68 (1990).

26. Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 77-78, 8 ELR 20545, 20548 (1978).

27. Defenders, 112 S. Ct. 2130, 2137, 22 ELR 20913, 20916 (1992) (quoting Allen, 468 U.S. at 758).

28. Id., 22 ELR at 20915; Allen, 468 U.S. at 758; Warth, 422 U.S. 490, 505 (1975).

29. See, e.g., Abbott Labs, 387 U.S. at 149; Defenders of Wildlife v. Hodel, 851 F.2d 1035, 1043, 18 ELR 21343, 21347 (8th Cir. 1988).

30. Valley Forge, 454 U.S. 464, 472 (1982).

31. Allen, 468 U.S. at 759-60.

32. 112 S. Ct. at 2140, 22 ELR at 20917.

33. Valley Forge, 454 U.S. at 472; NWF, 110 S. Ct. 3177, 3193-94, 20 ELR 20962, 20969 (1990); Humane Soc'y of the United States v. Hodel, 840 F.2d 45, 60, 18 ELR 20636, 20644 (D.C. Cir. 1988). For an overview of the prudential elements of standing, see William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 251-53 n.15 (1988-89).

34. 5 U.S.C. §§ 701-706, ELR STAT. APA 007 (1977). The APA is one of the most significant grants of standing for purposes of environmental law. Section 10 of the Act provides that "a person … adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof." Id. § 702, ELR STAT. APA 007.

35. See, e.g., Toxic Substances Control Act § 20, 15 U.S.C. § 2619, ELR STAT. TSCA 029 (1988); Endangered Species Act § 11(g), 16 U.S.C. § 1540(g), ELR STAT. ESA 025 (1988); Surface Mining Control and Reclamation Act § 520, 30 U.S.C. § 1270, ELR STAT. SMCRA 044 (1988); Federal Water Pollution Control Act § 505, 33 U.S.C. § 1365, ELR STAT. FWPCA 065 (1988); Resource Conservation and Recovery Act § 7002(a), 42 U.S.C. § 6972(a), ELR STAT. RCRA 034 (1982 and Supp. V 1987); and Clean Air Act § 304, 42 U.S.C. § 7604, ELR STAT. CAA 134 (1982).

36. In my prior article on standing I stated:

Although the Supreme Court stated that the power of Congress to grant standing is limited by Article III, Whitmore v. Arkansas, 110 S. Ct. 1717, 1723 (1990); Allen v. Wright, 468 U.S. 737, 754 (1984), in cases involving statutory grants of standing it has not required any showing of injury beyond violation of the statute. See, e.g., Havens Realty v. Coleman, 453 U.S. 363 (1982); United States Parole Comm'n v. Geraghty, 445 U.S. 388 (1980).

Sheldon, supra note 2, at 10559 n.46.

37. Defenders, 112 S. Ct. 2130, 2142, 22 ELR 20913, 20918 (1992).

38. Id. at 2143 n.8, 22 ELR at 20918 n.8.

39. The proof requirement is consistent with a separation-of-powers analysis. If courts lack constitutional authority under Article III to rule in the absence of injury in fact, it follows that they must require proof of the injury. Jonathan Poisner, Environmental Values and Judicial Review After Lujan: Two Critiques of the Separation of Powers Theory of Standing, 18 ECOLOGY L.Q. 335, 348 (1991).

40. Defenders, 22 ELR at 20915; NWF, 110 S. Ct. 3177, 3186-87, 20 ELR 20962, 20965 (1990).

41. 16 U.S.C. §§ 1531-1543, ELR STAT. ESA 002-027 (1985).

42. The ESA defines "conserve" to include not only protection of species in danger of extinction, but restoration as well. Conserve means the use of all methods and procedures necessary to bring endangered or threatened species to the point where the measures provided by the Act are no longer required. ESA § 3(3), 16 U.S.C. § 1532(3), ELR STAT. ESA 002.

43. Id. § 2, 16 U.S.C. § 1531, ELR STAT. ESA 002.

44. Id., 16 U.S.C. § 1531, ELR STAT. ESA 002.

45. Id. § 4(c)(1), 16 U.S.C. § 1533(c)(1), (a)(2), ELR STAT. ESA 006. See also 50 C.F.R. § 17.11-12 (1986).

46. Hodel, 851 F.2d 1035, 1037, 18 ELR 21343, 21344 (8th Cir. 1988).

47. 16 U.S.C. § 1536(a)(2), ELR STAT. ESA 011.

48. The ESA divides responsibility for the conservation of endangered and threatened species between the two departments. Id. § 3, 16 U.S.C. § 1532(15), ELR STAT. ESA 003. Both Secretaries issued the regulation in question in the Defenders case. Because Defenders did not name the Secretary of Commerce in its lawsuit, this Article will refer solely to the Secretary of the Interior.

49. Id. § 7(a)(2), 16 U.S.C. § 1536(a)(2), ELR STAT. ESA 011.

50. Id. § 7(b), 16 U.S.C. § 1536(b), ELR STAT. ESA 011.

51. Id. § 7(b)(3)(A), 16 U.S.C. § 1536(b)(3)(A), ELR STAT. ESA 011.

52. Hodel, 851 F.2d 1037, 18 ELR 21343 (8th Cir. 1988); National Wildlife Federation v. Coleman, 529 F.2d 359, 371, 6 ELR 20344, 20349 (5th Cir. 1976), cert. denied, 429 U.S. 979 (1976). This is not to say, however, that a federal agency can knowingly violate the ESA after consultation. The prohibitions on the taking of listed species still apply.

53. 50 C.F.R. § 402.01 (1978); see also 43 Fed. Reg. 870, 874 (1978).

54. 50 C.F.R. § 402.01 (1991); see also 51 Fed. Reg. 19926, 19929 (1986) (explaining change in interpretation).

55. Defenders of Wildlife v. Hodel, 658 F. Supp. 43, 17 ELR 20882 (D. Minn. 1987).

56. ESA § 11(g)(1), 16 U.S.C. § 1540(g)(1), ELR STAT. ESA 025.

57. 5 U.S.C. § 706, ELR STAT. APA 007.

58. Hodel, 851 F.2d 1037, 1039 n.2, 18 ELR 21343, 21345 n.2 (8th Cir. 1988).

59. Defenders of Wildlife, 658 F. Supp. at 46, 17 ELR at 20883.

60. Defenders, 112 S. Ct. 2130, 2137-38, 22 ELR 20913, 20916 (1992).

61. Id. at 2139-40, 22 ELR at 20916-17.

62. Defenders of Wildlife, 658 F. Supp. at 47-48, 17 ELR at 20883-84.

63. 454 U.S. 464,472 (1982).

64. 468 U.S. 737, 750 (1984).

65. Defenders of Wildlife, 658 F. Supp. at 46, 17 ELR at 20883.

66. Id. at 45 n.2, 17 ELR 20882 n.2.

67. Hodel, 851 F.2d 1035, 18 ELR 21343 (8th Cir. 1988).

68. Id. at 1040, 18 ELR at 21346.

69. Id. at 1043, 18 ELR at 21347.

70. Id. at 1044, 18 ELR at 21348.

71. Defenders of Wildlife v. Hodel, 707 F. Supp. 1082, 1083, 19 ELR 20822, 20822 (D. Minn. 1989).

72. Id. at 1086, 19 ELR20825.

73. Defenders of Wildlife v. Lujan, 911 F.2d 117, 120, 20 ELR 21442, 21443 (1990).

74. Id. at 121, 20 ELR 21444 (quoting TVA v. Hill, 437 U.S. 153, 183, 8 ELR 20513, 20521 (1978)).

75. Justice Scalia was joined in the plurality opinion by Justices Rehnquist, White, and Thomas. Justices Souter and Kennedy agreed with the judgment, but filed a separate opinion, principally on the issue of Congress' right to confer standing by statute. Justice Stevens also concurred in the judgment, because he was persuaded that the ESA does not apply overseas, not because he agreed that Defenders lacked standing. Justices Blackmun and O'Connor dissented.

76. 454 U.S. 464, 472 (1982).

77. 422 U.S. 490, 501 (1975).

78. 405 U.S. 727, 737, 2 ELR 20192, 20194-95 (1972).

79. Defenders, 112 S. Ct. 2130, 2136, 22 ELR 20913, 20915 (1992) (quotations and citations omitted).

80. Id. at 2137, 22 ELR at 20916.

81. Id. at 2138, 22 ELR at 20916 (quoting Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977)).

82. Id., 22 ELR at 20916 ("We shall assume for the sake of argument that [Defenders' members] affidavits contain facts showing certain agency-funded projects threaten listed species….")

83. Id., 22 ELR at 20916. In the dissent, Justice Blackmun wondered what would constitute "enough" proof and expressed concern that the Court's ruling "will resurrect a code-pleading formalism in federal court summary judgment practice." He wanred,

a nurse turned down for a job on grounds of her race had better be prepared to show on what date she was prepared to start work, that she had arranged daycare for her child and that she would not have accepted work at another hospital instead. And a Federal Tort Claims Act plaintiff alleging loss of consortium should make sure to furnish this Court with a description of concrete plans for her nightly schedule of attempted activities.

Id. at 2153-54, 22 ELR at 20924 (Blackmun, J., dissenting).

84. Id. at 2139, 22 ELR at 20916.

85. Id., 22 ELR at 20917. Justice Scalia seems fond of such absolute statements. In NWF, he concluded that it was "impossible" for the National Wildlife Federation to have standing to challenge the Interior Department's land withdrawal review program, although the D.C. Circuit had concluded that it did on two separate occasions before the matter reached the Supreme Court. 110 S. Ct. 3177, 3189, 20 ELR 20962, 20967 (1990). Obviously, it is not "beyond all reason" for standing to be found in a person interested in the preservation of a protected species. The Eighth Circuit, Justices Blackmun, O'Connor, and Stevens reasoned that such a result was perfectly appropriate. The impossibility of the idea, for Scalia, stems from his own view of the role of the courts in a government with impermeable barriers between the branches and a judiciary limited to hearing individual grievances.

86. Defenders, 112 S. Ct. at 2140, 22 ELR at 20917 (quoting Allen v. Wright, 468 U.S. 737, 759-600 (1984)).

87. Id., 22 ELR at 20917.

88. Id. at 2141, 22 ELR 20917.

89. Id. at 2141-42, 22 ELR at 20918.

90. § 11(g), 16 U.S.C. § 1540(g), ELR STAT. ESA 025.

91. Defenders of Wildlife v. Lujan, 911 F.2d 117, 121-22, 20 ELR 21442, 21444 (8th Cir. 1990).

92. Defenders, 112 S. Ct. at 2143, 22 ELR at 20918.

93. Id., 22 ELR at 20919.

94. Id. at 2145, 22 ELR at 20919.

95. Id. at 2144-45, 22 ELR at 20919.

96. Justices Kennedy and Souter were not satisfied that the threat of injury to Defenders' members was real and immediate. They observed that, because this was not a case where it was reasonable to assume regular use of the project sites at issue, Defenders' members had a particular burden to establish injury, such as the acquisition of airline tickets to show intent to return to the project sites. Id. at 2146, 22 ELR at 20920 (Kennedy, J., concurring).

97. Id., 22 ELR at 20910 (citations omitted) (Kennedy, J., concurring).

98. Id., 22 ELR at 20920 (Kennedy, J., concurring).

99. Id. at 2147, 22 ELR at 20910 (Kennedy, J., concurring).

100. Id. at 2146, 22 ELR at 20920-21 (Kennedy, J., concurring).

101. Id., 22 ELR at 20920 (Kennedy, J., concurring).

102. Id., 22 ELR at 20920 (citing 16 U.S.C. § 1540(g)(1)(A)) (Kennedy, J., concurring).

103. Id. at 2146, 22 ELR at 20920 (Kennedy, J., concurring).

104. Id. at 2147, 22 ELR at 20921 (Stevens, J., concurring).

105. Id., 22 ELR at 20921 (Stevens, J., concurring).

106. ESA § 2(a)(3), 16 U.S.C. § 1531(a)(3), ELR STAT. ESA 002.

107. Defenders, 112 S. Ct. at 2148, 22 ELR at 20921 (Stevens, J., concurring).

108. Id. at 2148, 22 ELR at 20921.

109. Id. at 2148, 22 ELR at 20921 (Stevens, J., concurring).

110. Id. at 2149, 22 ELR at 20921-22 (Stevens, J., concurring).

111. Id. at 2152, 22 ELR at 20923 (Blackmun, J., dissenting).

124. Id. at 100-01.

125. Laurence Tribe, AMERICAN CONSTITUTIONAL LAW § 3-14, at 102, 107 (2d ed. 1988). The nexus theories advanced by Defenders were efforts to make the connection required by this analysis.

126. Jerry L. Mashaw, Rights in the Federal Administrative State, 92 YALE L.J. 1129, 1137 (1983).

127. William H. Rodgers, ENVIRONMENTAL LAW 23 (1977).

128. Poisner, supra note 39, at 344-45.

129. 418 U.S. 208 (1974).

130. 418 U.S. 166 (1974).

131. Defenders, 112 S. Ct. 2130, 2143, 22 ELR 20913, 20919 (1992).

132. Warth, 422 U.S. 490, 499 (1975).

133. See Valley Forge, 454 U.S. 464, 475 (1982); Allen, 468 U.S. 737, 752 (1984).

134. Defenders, 112 S. Ct. at 2158, 22 ELR at 20926 (Blackmun, J., dissenting).

135. See, e.g., Richard A. Brisbin, "Administrative Law is not for Sissies": Justice Antonin Scalia's Challenge to American Administrative Law, 44 ADMIN. L. REV. 107, 109-10 (1992); M. David Gelfand & Keith Werhan, Federalism and the Separation of Powers on a "Conservative" Court: Currents and Cross-Currents from Justices O'Connor and Scalia, 64 TULANE L. REV. 1443, 1465-68 (1990).

136. Brisbin, supra note 135, at 109.

137. James B. Beam Distilling Co. v. Georgia, 111 S. Ct. 2439, 2450 (1991) (Scalia, J., concurring). See also Mistretta v. United States, 488 U.S. 361, 413-27 (1989) (Scalia, J., dissenting).

138. Morrison v. Olson, 487 U.S. 654, 708-15 (1988) (Scalia, J., dissenting) ("A system of separate and coordinate powers necessarily involves the acceptance of exclusive power that can theoretically be abused.").

139. Scalia, supra note 13, at 890-93.

140. Brisbin, supra note 135, at 122-23.

141. Barry Boyer & Errol Meidinger, Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen Suits Under Federal Environmental Laws, 34 BUFF. L. REV. 833, 945 (1985).

142. Scalia, supra note 13, at 897 (quoting Calvert Cliffs Coordinating Comm., Inc. v. AEC, 449 F.2d 1109, 1111, 1 ELR 20346, 20347 (D.C. Cir. 1971)).

143. Id. at 896.

144. Id.

145. Id. at 897.

146. Boyer & Meidinger, supra note 141, at 994.

147. Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. CHI. L. REV. 653, 669-70 (1985).

148. Defenders, 112 S. Ct. 2130, 2147, 22 ELR 20913, 20920-21 (1992) (Kennedy, J., concurring).

149. Seattle Audubon Soc'y v. Evans, No. C89-160WD, slip op. at 17, 20 (W.D. Wash. May 23, 1992).

150. Morrison v. Olson, 487 U.S. 654, 708-715 (1988).

151. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 521; Brisbin, supra note 135, at 119.

152. Brisbin, supra note 135, at 121.

153. Scalia, supra note 13, at 895-96.

154. Defenders, 112 S. Ct. 2130, 2147, 22 ELR 20913, 20920 (1992).

155. Michael A. Perino, Justice Scalia: Standing, Environmental Law and the Supreme Court, 15 B.C. ENVTL. AFF. L. REV. 135, 153 (1987-88).

156. Scalia, supra note 13, at 895.

157. For a comprehensive overview of citizen suit provisions, see Michael Axline, ENVIRONMENTAL CITIZEN SUITS (1991), Jeffrey Miller, CITIZEN SUITS: PRIVATE ENFORCEMENT OF FEDERAL POLLUTION CONTROL LAWS (1987), and Rodgers, supra note 127, at § 1.6.

158. Boyer & Meidinger, supra note 141, at 846. This is not to say that the citizen suit provisions grant unfettered authority to citizens. The legislative histories of the statutes indicate some congressional caution about giving private parties power to enforce statutory provisions. See Miller, supra note 157, at 5, 10 notes 33-34.

159. S. REP. NO. 414, 92d Cong., 2d Sess. 5 (1972), reprinted in 1972 U.S. CODE CONG. AND ADMIN. NEWS 3668, 3672.

160. S. REP. NO. 1196, 91st Cong., 2d Sess. 36-37 (1970) (Clean Air Act).

161. A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 819 (1973).

162. 116 CONG. REC. 32903 (1970), reprinted in 1 Envtl. Pol'y Div., Cong. Res. Serv., A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1970, at 226, 230 (1974).

163. See supra note 35. Indeed, the only significant environmental statute enacted in the 1970s without a citizen suit provision, other than NEPA, 42 U.S.C. §§ 4321-4344, ELR STAT. NEPA 003-005 (1977), which by its language contemplates judicial review of agency compliance with its procedures, is the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) § 9(g), 7 U.S.C. § 3136(g), ELR STAT. FIFRA 019 (1988).

164. 405 U.S. 727, 2 ELR 20192 (1972).

165. S. CONF. REP. NO. 1236, 92d Cong., 2d Sess. 146 (1972), reprinted in 1972 U.S. CODE CONG. AND ADMIN. NEWS 3776, 3823.

166. See, e.g., Student Pub. Interest Res. Group v. Fritzsche, Dodge & Olcott, Inc., 579 F. Supp. 1528, 1535, 14 ELR 20450, 20453-54 (D. N.J. 1984).

167. Boyer & Meidinger, supra note 141, at 938, 941.

168. Sheldon, supra note 2, at 10559 n.46.

169. Rodgers, supra note 127, at 76-77.

170. Miller, supra note 157, at 24.

171. Defenders, 112 S. Ct. 2130, 2154, 22 ELR 20913, 20924 (1992) (Blackmun, J., dissenting).

172. See Sierra Club v. Madigan, No. L-85-69-CA (E.D. Tex. July 28, 1992) (Memorandum and Order on Standing); Seattle Audubon Soc'y v. Moseley, 798 F. Supp. 1484 (W.D. Wash. 1992) (same). In both of these orders, the courts upheld the standing of plaintiff groups to challenge the U.S. Forest Service's management of national forests regularly visited by members of plaintiff organizations.

173. S. 2953, 101st Cong., 1st Sess., CONG. REC. S9801 (July 2, 1992).


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