ELR Citation: ELR 21343
No(s). 87-5132 (8th Cir. Jul 8, 1988)

The court holds that environmental groups have standing to challenge a regulation that fails to require federal agencies funding projects in foreign countries to consult with the Secretary of the Interior regarding impacts on endangered species. The court first holds that the plaintiffs need only satisfy the constitutional requirements for standing, since §11(g) of the Endangered Species Act (ESA) has eliminated any additional prudential requirements by authorizing "any person" to sue to enjoin ESA violations. In a note, the court holds that an interest in preserving endangered species is directly within the zone of interests of the ESA for purposes of standing under §702 of the Administrative Procedure Act. The court then holds that the plaintiffs face a threatened injury-in-fact, because the regulation allows federal agencies to proceed with projects without considering their effects on endangered species, which may increase the rate of extinction of those species. The court then holds that the plaintiffs' interest in the enforcement and administration of the ESA supports standing, because the plaintiffs allege that their members have visited specific project areas and will be adversely affected. The court holds that the Department of the Interior's violation of its procedural duty to require consultation is also an injury-in-fact. The court holds that the injury to the plaintiffs' professional and aesthetic interests in the existence of endangered species is fairly traceable to the new regulation and is likely to be redressed by an injunction. Although no federally funded projects have begun since the regulation was adopted, there is a continuing need for consultation on existing projects, and consultation on those projects must be resumed when new information reveals effects not previously considered. The court next holds that the plaintiffs' standing does not depend on proof that the projects will harm endangered or threatened species. The regulation creates a risk that an agency will overlook harm to endangered species. Requiring proof of that harm would require the plaintiffs to conduct investigations for which the federal government is responsible. In addition, by establishing the consultation requirement, Congress has decided that lack of consultation causes harm, and that consultation redresses that harm.

A dissent would hold that the causal link between the regulation and harm to endangered species in foreign countries is too remote to satisfy the traceability element of standing.

[The district court's decision appears at 17 ELR 20882.]

Counsel for Appellants
Brian B. O'Neill
Faegre & Benson
2300 Multifoods Tower, 33 S. Sixth St., Minneapolis MN 55402
(612) 371-5300

Counsel for Appellee
John C. Harrison
Office of the Solicitor General
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Before John R. GIBSON, BOWMAN, and WOLLMAN, Circuit Judges.