ELR Citation: ELR 20913
No(s). 90-1424 (U.S. Jun 12, 1992)

The Court holds that environmental organizations have not established an injury sufficient to confer standing to challenge the inapplicability of the interagency consultation requirements in §7(a)(2) of the Endangered Species Act (ESA) to federal actions taken abroad. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service, on behalf of the Secretaries of the Interior and Commerce, initially promulgated a joint regulation extending the interagency consultation obligations imposed by §7(a)(2) to actions taken in foreign nations. The regulation required consultation to ensure that federal actions abroad would not jeopardize the continued existence or habitat of any endangered or threatened species. A subsequent joint regulation limited §7(a)(2)'s consultation obligations to agency actions taken in the United States or on the high seas. Wildlife conservation and environmental organizations sought declaratory and injunctive relief requiring the Secretary of the Interior (the Secretary) to restore the initial interpretation. The district court initially dismissed the action for lack of standing, but the Eighth Circuit reversed, and on remand, the district court ordered the Secretary to publish a revised regulation, and the Eighth Circuit affirmed.

The Court holds that the environmental organizations have not demonstrated that they suffered an injury-in-fact. To invoke federal jurisdiction, the organizations must establish a concrete and particularized injury, and an actual or imminent invasion of a legally protected interest. The Court holds that the desire to use or observe an animal species, even for purely aesthetic purposes, is a cognizable interest for purposes of standing. Writing for the Court, however, Justice Scalia observes that standing is particularly difficult to show in this case, because the organizations must bear the burden of demonstrating that choices made by third parties not before the Court have been or will be made in such a manner as to produce causation and permit redressability. To survive summary judgment, the organizations' affidavits or other evidence must set forth facts to support their claims. The Court holds that the affidavits of two of the organizations' members fail to demonstrate how the lack of interagency consultation with respect to certain U.S.-funded activities increases the rate of extinction to the species they wish to observe in Egypt and Sri Lanka. That they had visited the areas before certain agency-funded projects were begun and had observed the endangered nile crocodile and endangered elephants and leopards does not demonstrate a present case or controversy. Even if the United States' role in the Aswan High Dam on the Nile, in Egypt's master water plan, and in the Sri Lanka Mahaweli Project threatens listed species and will deprive the affiants of the opportunity to observe endangered species, the affiants' intent to return to these places they had previously visited does not support a finding of actual or imminent injury. A statement of an intent to return in the future and not during the next year or while a civil war is going on does not provide a concrete plan. In a footnote, Justice Scalia observes that the concept of "imminence" is elastic, but the organizations allege only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the affiants' own control.

Next, the Court holds that a series of the organizations' arguments proposing new standing theories are without merit. The organizations' proposal that any person who uses any part of a contiguous ecosystem has standing, even if the activity is located a great distance away, is inconsistent with the Court's decision in Lujan v. National Wildlife Federation, 20 ELR 20962, which held that claiming injury only "in the vicinity of" the area affected by the challenged agency activity does not establish standing. The organizations' other theories that anyone may sue who has a professional or other interest in studying or seeing endangered animals are unreasonable. Standing at the summary judgment stage requires a factual showing of perceptible harm, and it is pure speculation to say that anyone who observes or works with an endangered species anywhere in the world is appreciably harmed when no specific connection with the species exists.

The Court holds that besides failing to show injury, the organizations have failed to demonstrate redressability. Directing the Secretary to revise the regulation to require consultation for foreign projects would not remedy the organizations' alleged injury, unless the regulation were binding on the funding agencies. However, the Solicitor General and the agencies have repudiated that position. Further, the agencies were not parties to the suit and should not be obliged to honor an incidental legal determination the suit produced. Whether cessation of the projects would be less harmful to endangered species is entirely conjectural.

The Court next holds that the organizations do not have standing arising from a procedural injury. Justice Scalia rejects the Eighth Circuit's view that because §7(a)(2) of the ESA requires interagency consultation, the citizen suit provision creates for all persons a procedural right to consultation. The Court's generalized grievance cases provide that raising only a general grievance about the public interest in proper administration of the laws does not state an Article III case or controversy. Although these cases typically involve government violation of procedures ordained by the Constitution rather than Congress, the case or controversy inquiry does not turn on the source of the asserted right. To hold that the public interest in proper administration of the laws can be converted into an individual right by a statute that allows citizens to sue without suffering a concrete harm would allow the congress impermissibly to transfer constitutional duties from the executive branch to the courts. Congress may broaden categories of injury that may be alleged in support of standing, but the requirement of concrete injury still must be met.

Justices Kennedy and Souter concur in the Court's conclusion that the organizations have not demonstrated a concrete injury sufficient to confer standing, but they would not reach the issue of redressability.

Justice Stevens concurs in the judgment of reversal only, reasoning that Congress did not intend the consultation requirement in §7(a)(2) of the ESA to apply to activities in foreign countries. Justice Stevens departs from the Court's conclusion that the organizations lack an imminent and redressable threat to their interests in studying endangered species. Instead, a reasonable finder of fact could conclude that the affiants' past visits, professional backgrounds, and affidavits and deposition testimony demonstrate that they will return to the project sites and will be injured by the extinction of the endangered species. The imminence of an injury should be measured by the timing and likelihood of the threatened environmental harm. Further, all affected agencies would presumably abide by a ruling that §7(a)(2) requires consultation. Nevertheless, nothing in §7(a)(2) of the ESA expressly or implicitly indicates that it applies to U.S.-funded activities in foreign countries.

In dissent, Justices Blackmun and O'Connor argue that the organizations have raised material fact issues concerning injury and redressability sufficient to survive summary judgment. The dissenting Justices conclude that the Court's demand for detailed descriptions of future conduct will not distinguish those who are genuinely harmed from those who are not. Instead, the result will be a renewed code-pleading formalism in federal court summary judgment practice, and federal courts will demand increasingly greater particularized showings of future harm. The dissent observes that a litigant's failure to use the precise site where animals are slaughtered or toxic waste is dumped into a river should not preclude a showing of injury. Further, the organizations' claims are redressable, because the federal agencies would be collaterally estopped from relitigating the extraterritorial scope of the §7(a)(2) consultation requirement. The dissenting Justices also argue that the Court's broad language concerning procedural injury cannot be interpreted as saying that procedural injuries as a class are necessarily insufficient for purposes of Article III standing. The ESA §7(a)(2) consultation requirement is designed as a check on federal agency action, and the organizations are seeking to enforce a procedural requirement, which if disregarded, could impair a separate, concrete interest in observing and studying endangered or threatened species.

[The Eighth Circuit's decision is published at 20 ELR 21442. Other decisions in this litigation are published at 17 ELR 20882, 18 ELR 21343, and 19 ELR 20822. Pleadings and briefs filed in this case are digested at ELR PEND. LIT. 65919, 66029, 66056, 66147, and 66161.]

Counsel for Petitioner
Hon. Kenneth W. Starr, Solicitor General
10th and Pennsylvania Ave. NW, Rm. 5143, Washington DC 20530
(202) 514-2201

Counsel for Respondent
Brian B. O'Neill
2200 Norwest Center, 90 S. 7th St., Minneapolis MN 54402
(612) 336-3000