Standing for Environmental Groups: An Overview and Recent Developments in the D.C. Circuit

Barnett M. Lawrence

Editor's Summary: The doctrine surrounding the rights of individuals to pursue legal remedies in the courts has a long and complex history, and has resulted in a patchwork of rules that are not always easy to follow. Standing to sue limitations have their origins in Article III of the United States Constitution, which limits federal jurisdiction to "cases and controversies." In the early 1970s, the Supreme Court paved the way for environmental groups to participate directly in the evaluation of environmental law by liberalizing the rules pertaining to standing. Congressional expression of standing requirements is found in the Administrative Procedure Act, which provides for access to the courts to persons "adversely affected or aggrieved" by the actions of federal agencies, and the citizen suit provisions found in many of the environmental statutes enacted in the 1970s and 1980s. Together, these judicial and congressional expressions establish certain conditions for standing that, until recently, many environmental litigants thought were fairly easy to satisfy. Several recent judicial decisions may cause them to rethink this conclusion, however. This Comment reviews the established rules of standing in light of these decisions. The author discusses the cases, most of which arise in the D.C. Circuit, and examines their practical implications for environmental organizations.

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Environmental organizations play a critical role in shaping the implementation of our environmental laws. One of the primary methods these groups use is judicial challenges to agency regulations or actions that these groups believe will harm the environment. This litigation was made possible by the dramatic liberalization in the early 1970s of standing law — the perplexing body of law that determines who is entitled to have his or her claim heard in court.

The standing of environmental organizations to sue on behalf of their members' environmental interests became well established in the 1970s. Through the years, the courts added new requirements and tinkered with old ones, but generally continued to liberally grant standing to environmental groups. However, several recent cases from the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) indicate that environmental organizations may have to meet more stringent standing requirements in the future. These cases should alert environmental groups to be more vigilant in establishing standing and have given the government and other defendants more hope of having cases thrown out on standing grounds. Litigants must heed the warning from the Chief Judge of the D.C. Circuit that "[n]o plaintiff before our court can afford any longer to be unprepared to defend standing, and a defendant must be prepared in any case to explain why it was not raised."¹

This Comment will present an overview of the standing requirements for environmental organizations suing on their own behalf and on behalf of their members. It will analyze the recent spate of standing decisions from the D.C. Circuit, and will offer some practical tips for responding to these decisions. The Comment will conclude that while the recent decisions denying standing have been largely confined to the D.C. Circuit, it would be prudent for environmental groups to be prepared to show standing with a greater level of specificity than in the past.

Basic requirements

Standing is one aspect of the "case or controversy" requirement of Article III of the United States Constitution.² It [19 ELR 10290] is used by courts to determine who has enough of a stake in a controversy to be allowed to present his or her case.³ A defendant may raise standing at any stage of litigation,⁴ or a court may consider the issue sua sponte.⁵ The issue can arise in a statutory challenge to an agency action as well as in a non-statutory action.

Many environmental statutes include citizen suit provisions allowing any person to challenge certain agency or private party actions.⁶ Moreover, the Administrative Procedure Act (APA) provides that persons "adversely affected or aggrieved by agency action within the meaning of a relevant statute" are entitled to judicial review.⁷ The Supreme Court has interpreted these statutes to require plaintiffs to meet the constitutional requirements for standing.⁸ Thus, courts have applied the same analysis to the questions of whether a plaintiff is "aggrieved" under the APA or whether he has alleged a "case or controversy" under Article III.⁹

Despite a large body of case law, standing is essentially a case-by-case inquiry heavily dependent on the specific allegations made by the litigants.¹⁰ Written formulations of standing rules provide a useful outline of the types of issues that may arise, but are often unreliable as predictors of how a given case will be decided. It is perhaps a consequence of the fact-specific nature of the cases that the Supreme Court's standing jurisprudence has been characterized as "woefully inconsistent."¹¹ In Valley Forge Christian College v. Americans United for Separation of Church and State, the Court admitted that it had not defined standing with "complete consistency" and that this inconsistency probably proves that standing "cannot be reduced to a one-sentence or one-paragraph definition."¹² The Court nevertheless offered the following one-sentence definition of Article III standing:

[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision."¹³

In addition to these three constitutional requirements, the courts have developed a set of prudential requirements, most notably that the plaintiff's claim fall within the "zone of interests to be protected or regulated by the statute or constitutional guarantee in question."¹⁴ A special set of rules applies to standing for organizations, which can bring suit either on their own behalf or, more commonly, on behalf of their members.¹⁵

Constitutional Requirements

Injury-in-fact

Disputes over whether a plaintiff has shown injury to some protected interest are the heart of the standing issue. Until about 1970, courts would generally only grant standing to those who could show harm to their economic or property interests. However, a series of Supreme Court opinions has firmly established that litigants may assert injury to their environmental, recreational, and aesthetic interests.¹⁶

* Environmental interests: Sierra Club v. Morton¹⁷ was the first major standing case involving environmental interests decided by the Supreme Court. The Court rejected the Sierra Club's argument that its longstanding concern with and expertise in the natural resource field was sufficient to establish standing in its challenge to the Forest Service's approval of a ski development in a national forest. The Sierra Club tried to stretch standing to the limit and just barely lost. The Court ruled that a plaintiff must allege an actual injury and that a mere interest in a problem, no matter how longstanding or sincere, is not enough.¹⁸ The [19 ELR 10291] Court did observe, however, that injuries to environmental interests are cognizable:

Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.¹⁹

The Supreme Court's decision a year later in United States v. Students Challenging Regulatory Agency Procedures (SCRAP)²⁰ probably represented the zenith in standing law for environmental groups.²¹ In SCRAP, an environmental group brought a National Environmental Policy Act challenge to the Interstate Commerce Commission's temporary rate increase on rail shipments. The group alleged that the rate increase would cause additional use of nonrecyclable goods as compared to recyclable goods, thus requiring the extraction of more natural resources. Some of these resources, the group argued, might be taken from the Washington, D.C., area, which would interfere with its members' use and enjoyment of the forests, streams, and other natural amenities in that area. The Court held that these allegations were sufficient to establish injury-in-fact. The Court noted that SCRAP had alleged a specific and perceptible harm that distinguished its members from others who had not used the affected natural resources.²² In a frequently quoted footnote, the Court stated that the alleged injury need not be important or large — an "identifiable trifle" is enough.²³

While the chain of causation leading to the alleged injury in SCRAP was relatively tenuous, the case clearly reaffirmed the Court's statement in Morton that injuries to aesthetic and recreational interests are sufficient to confer standing. This proposition is now so well settled that courts can be more liberal in granting standing to plaintiffs asserting environmental interests than traditional economic interests.²⁴

* Abstract and general interests: Although an alleged injury may encompass a wide range of aesthetic and recreational interests, a general interest in an issue or an injury to abstract interests is also not enough. Thus, an environmental group's concern and expertise in natural resources is not a cognizable injury.²⁵ The allegation that an agency must administer a statute or program according to law is also not enough. Many courts have held that an interest in the enforcement of environmental laws is not cognizable.²⁶ However, the fact that the injury is shared by a large number of people does not preclude standing.²⁷ An actual injury cannot be transformed into a generalized grievance simply because many people share the injury.

An injury need not have already occurred. In fact, many standing cases involve allegations of a threatened injury from a proposed government action or policy.²⁸ Further, an injury need not directly affect the plaintiff. A government action that directly affects a third party, whose expected response will injure the plaintiff, can provide the requisite injury-in-fact.²⁹

* Recent developments: In several recent cases involving the use of public lands, courts have denied standing to environmental groups on the grounds that they did not adequately demonstrate injury-in-fact. These cases generally did not turn on legal arguments, but on issues of proof. An analysis of these cases reveals that plaintiffs, at least in the D.C. Circuit, may have to demonstrate injury with greater specificity than in the past.

In Wilderness Society v. Griles,³⁰ the D.C. Circuit held that the Wilderness Society and the Sierra Club lacked standing to challenge the Bureau of Land Management's (BLM's) decision to exclude submerged lands under non-navigable waters from the total acreage charged to Alaska's or native corporations' land allocations under the Alaska Statehood Act or the Alaska Native Claims Settlement Act. Plaintiffs alleged that BLM's new policy would shift more acres of Alaskan land from federal control to either state or native ownership and would thus injure their members who use federal lands in Alaska. Plaintiffs demonstrated that their members use various specified federal lands throuthout Alaska for recreational and aesthetic purposes. The court, however, held that plaintiffs did not show a sufficient likelihood of future injury to withstand a motion for summary judgment. The court ruled that where the alleged injury involves access to land, a plaintiff must specify the land that it intends to use that will be affected [19 ELR 10292] by the challenged action.³¹ Although plaintiffs demonstrated an interest in access to public lands in Alaska, and there will eventually be fewer acres of these lands as a result of the new policy, plaintiffs failed to show that any of these lands will be ones their members use and enjoy.³²

The procedural posture of the case was the key to the court's decision. The court held that a plaintiff must show injury with greater specificity on a motion for summary judgment than on a motion to dismiss.³³ The court cited SCRAP, which held that an allegation that plaintiff's members used and enjoyed the natural resources in question was sufficient to withstand a motion to dismiss. The SCRAP Court noted in a footnote that plaintiff might have to show injury with greater specificity on a motion for summary judgment by identifying the specific land its members use that would be affected by the challenged action.³⁴ The Supreme Court later acknowledged that SCRAP might have come out differently had it been decided on a motion for summary judgment.³⁵

The district court in National Wildlife Federation v. Burford³⁶ relied heavily on Wilderness Society in holding that the Federation lacked standing to challenge BLM's decision to lift development restrictions on 180 million acres of public land. The Federation challenged BLM's land withdrawal review program, under which BLM had opened up large tracts of public land to mineral exploration and development. On cross-motions for summary judgment, the court held that plaintiff lacked standing to sue on its own behalf or on behalf of its members' environmental interests.³⁷ The court, citing Wilderness Society, also held that plaintiff must show injury with greater specificity on a motion for summary judgment than on a motion to dismiss.³⁸

The court first held that the Federation lacked standing to assert injury in its organizational capacity. The Federation asserted injury to its ability to obtain information on the land withdrawal review program and to participate in BLM's decisionmaking process. The court concluded that the single affidavit submitted in support of this allegation was "conclusory and completely devoid of specific facts."³⁹ The court also held that the Federation lacked standing to sue on behalf of its members' environmental injuries. Drawing heavily from the discussion of three-party standing cases in Wilderness Society, the court found that affidavits from two of the Federation's members alleging that they use federal lands "in the vicinity" of the affected areas for recreational and aesthetic purposes lacked sufficient specificity to show injury-in-fact, since the members did not show that they used the specific land affected by BLM's proposal.⁴⁰ Moreover, the court held that these two affidavits do not provide a basis for standing to challenge the legality of each of BLM's roughly 1,250 individual land classification decisions.⁴¹

In Natural Resources Defense Council, Inc. v. Burford,⁴² the same district court denied standing to environmental groups that challenged regulations issued by the Department of the Interior governing leasing and mining of federally owned coal. The court held that the bare allegations in the complaint and one paragraph in a subsequent pleading, unsupported by affidavits or other documentary evidence, were not sufficient at the summary judgment stage.⁴³ While surface coal mining has many negative environmental effects of concern to plaintiffs, the court found that plaintiffs failed to prove that the regulatory program injured or threatened to injure them. The court concluded that plaintiffs failed to show that the alleged injuries will arise from either the leasing of new lands or the extension of older leases.⁴⁴

Wilderness Society v. Griles, National Wildlife Federation v. Burford and Natural Resources Defense Council, Inc. v. Burford all involve questions of proof. The fact that the standing issue arose at the summary judgment stage was central to each decision. These decisions appear to establish that, at least in the D.C. Circuit, plaintiffs must prove standing with a higher level of specificity at the summary judgment stage than on a motion to dismiss. Just how much more is required on summary judgment is not clear.⁴⁵

The environmental organizations may have been caught off guard by the degree of proof required by the courts [19 ELR 10293] in these cases after years of relative ease in establishing injury-in-fact. However, the cases also seem to establish a new, potentially burdensome test for environmental groups suing on behalf of their members' interests in using public lands. This test requires a plaintiff to show a direct connection between its members' use of public land and the location where the action of the third party will occur. Allegations that members used federal lands "in the vicinity" of the affected land were not sufficient for the court in National Wildlife Federation v. Burford.⁴⁶

This new hurdle, if it survives on appeal,⁴⁷ would require plaintiffs to follow a technical, resource-consuming exercise of identifying members who use every tract or disputed land. This requirement would make challenges to government policies at the programmatic stage very difficult. Environmental groups often seek to challenge an underlying government program before the individual decisions that implement that program are made. For example, plaintiffs in National Wildlife Federation v. Burford wanted to challenge BLM's overall land withdrawal review program, which set in motion approximately 1,250 individual decisions affecting specific tracts of land. Restricting challenges to the implementation stage would result in fragmented challenges that might have little impact on the overall program. Further, government and industry would not be sure of the validity of a new policy until it had actually been applied.⁴⁸

If courts require a high level of specificity in identifying affected citizens at the programmatic stage, environmental groups could effectively be barred from bringing challenges at this critical stage. If these groups cannot bring these challenges, it is possible that the only challenges to government programs affecting public lands would be brought by the affected industry. That nobody would have standing is not a reason to grant standing,⁴⁹ but there is usually no dispute in these cases that a challenged government action will have an impact on a certain segment of the population and that national environmental groups have such people among its members.⁵⁰ The issue is the level of specificity that a court requires in identifying these people.

Causation

In addition to establishing injury-in-fact, Article III requires a plaintiff to show that the injury is "fairly traceable" to the challenged action.⁵¹ A plaintiff need not prove causation with absolute certainty; a substantial likelihood that the allegedly unlawful action would cause the injury will suffice.⁵² The challenged action need not directly impact the plaintiff. A plaintiff's injury may be caused by the actions of a third party that were in turn caused by a governmental action. The D.C. Circuit recently observed that:

[w]hile the personal injury inquiry focuses on concrete facts about harm to the plaintiff, causation questions concern the directness of the link between the defendant's challenged action and the alleged injury, and focus on the incentive structure to which the intervening third party, who directly causes the injury, is responding. If the third party's conduct is sufficiently dependent upon the incentives provided by the defendant's action, then the resultant injury will be fairly traceable to that action and a court order binding the defendant will likely cure the plaintiff's harm.⁵³

The Supreme Court has found causation in a challenge by an environmental group to the Price-Anderson Act's limitation on utility liability in the event of a nuclear accident.⁵⁴ The Court held that there was a substantial likelihood that the utility company would not be able to complete construction and operate the nuclear plants at issue but for the protection provided by the Act.⁵⁵ Despite this "but for" approach to causation, however, courts may deny standing in cases with multiple, tenuous links between the challenged conduct and the asserted injury.⁵⁶

An unresolved issue is the degree of deference courts are required to give to congressional determinations of causation. The en banc D.C. Circuit recently split on this issue in Center for Auto Safety v. Thomas.⁵⁷ Five judges would have given considerable deference to Congress' legislative determination that the system of penalties and credits in the Energy Policy and Conservation Act would cause the auto industry to comply with more stringent fuel economy requirements instead of paying fines. The judges cited a "long line of decisions relying on such legislative determinations."⁵⁸ While Congress cannot abrogate the requirements of Article III, it can provide legislative assessments that courts can credit. These five judges did not believe that the judiciary should substitute its own predictions for congressional factfinding in assessing the likely impact of a complex regulatory scheme.⁵⁹

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Redressability

The final element of Article III standing requires a plaintiff to show that the relief requested from the court is likely to remedy the alleged injury.⁶⁰ When the relief requested is simply the cessation of illegal conduct, the causation and redressability analyses are identical.⁶¹ Thus, redressability is usually not a major issue.

A court may find that the redressability requirement has not been satisfied if the requested relief would worsen the plaintiff's position or if the court is unable to formulate any meaningful relief. In Gonzales v. Gorsuch,⁶² for example, the Ninth Circuit held that an individual had sufficient personal stake in his Federal Water Pollution Control Act citizen suit challenging the Environmental Protection Agency's (EPA's) approval of funds for the development of an areawide wastewater treatment management plan. However, the court held that plaintiff lacked standing because the relief he sought, an injunction against expenditure of the funds, would not redress the alleged injuries to his use of San Francisco Bay. Plaintiff waited almost a year before commencing discovery, and by the time the district court ruled on summary judgment motions most of the original sums had been spent and the planning period was over.⁶³

The requested relief must only be likely, not certain, to remedy the alleged injury. In assessing whether an injury is likely to be redressed, courts may assume that an agency will act reasonably. For example, in Watt v. Energy Action Educational Foundation,⁶⁴ the Supreme Court held that California had standing to challenge the Secretary of the Interior's bidding system for oil and gas leasing on the outer continental shelf (OCS) offshore California. The state clearly established injury-in-fact, since it receives a share of the OCS lease revenues, which California alleged would be reduced by the Secretary's bidding system.⁶⁵ The Court also held that the relief sought by California, experimental use on some leases of an alternative bidding system, would be redressed by a favorable decision. California claimed that the Secretary violated his statutory duty to determine through experimentation which bidding system works best and that he can fulfill this duty only by testing the bidding system proposed by the state. The Court, reasoning that the Secretary would likely adopt the most successful bidding system on all OCS leases, including those offshore California, held that the redressability requirement had been satisfied.⁶⁶

Prudential requirements

In additionto the three constitutional requirements, a plaintiff may have to satisfy certain prudential principles. The Supreme Court summarized these principles, derived from its earlier cases, in Valley Forge:

[T]his Court has held that "the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of third parties." In addition, … the Court has refrained from adjudicating "abstract questions of wide public significance" which amount to "generalized grievances," pervasively shared and most appropriately addressed in the representative branches. Finally, the Court has required that the plaintiff's complaint fall within "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question."⁶⁷

Unlike the constitutional requirements, Congress can eliminate the prudential requirements.⁶⁸ Congress has frequently exercised this right in environmental statutes.⁶⁹ The zone of interests test is by far the most important of the prudential limitations. It has not been applied consistently by the Supreme Court and has been in a state of flux in recent years.⁷⁰ The Court introduced the test in 1970 in Association of Data Processing Service Organizations, Inc. v. Camp.⁷¹ In subsequent decisions, the Court occasionally has listed the zone of interests test among the general prudential limitations; sometimes, however, it has ignored the test completely.⁷²

In its most recent attempt to clarify the zone of interests test, Clarke v. Securities Industry Association, the Court observed that the test is "not meant to be especially demanding; in particular there need be no indication of congressional purpose to benefit the would-be plaintiff."⁷³ The Court stated that the test is "most usefully understood as a gloss" on APA § 702. The Court affirmed the trend towards a liberal interpretation of the APA's review provisions.⁷⁴ However, the Court believed that Congress did not intend in enacting § 702 to allow suit by every person suffering an injury-in-fact. The Court thus supplied its own gloss on APA § 702 by requiring the interest sought to be protected by the plaintiff to be arguably within the zone of interests of the relevant statute. The Court stated that the test is:

[A] guide for determining whether, in view of Congress' [19 ELR 10295] evident intent to make agency action presumptively reviewable, a particular plaintiff should be heard to complain of a particular agency decision. In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicitly in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.⁷⁵

The Court interpreted the phrase a "relevant statute" in APA § 702 broadly. Thus, in applying the zone of interests test, courts are not limited to considering the statute under which plaintiffs sue, but may consider any provision that sheds light on Congress' overall purposes under the statute.⁷⁶

The D.C. Circuit applied Clarke in Wilderness Society v. Griles.⁷⁷ The court held that environmental groups suing under APA § 702 demonstrated that they were within the zone of interests protected by the Alaska Statehood Act and the Alaska Native Claims Settlement Act.⁷⁸ While these statutes were primarily designed to convey land to Alaska and its natives, they also contain provisions designed to ensure that land retained by the federal government would be used for national parks and forests and other preservation purposes. More recently, in Humane Society of the United States v. Hodel, the D.C. Circuit noted that all that is required is a plausible relationship between the interests of the litigants and the policies embodied in the overall context of the statutes involved.⁷⁹

In Hazardous Waste Treatment Council v. United States Environmental Protection Agency, the D.C. Circuit noted that Clarke requires less than a showing of congressional intent to benefit but more than a marginal relationship to the statutory purposes.⁸⁰ In this case, a trade organization of hazardous waste treatment firms challenged EPA's Resource Conservation and Recovery Act (RCRA) regulations governing the burning of used oil as fuel as not being sufficiently stringent. The court held that the organization lacked standing to assert a claim on behalf of its members that the alleged laxity of the regulations will diminish the market for the firms' high-technology treatment services. The court noted that whether Clarke applies to this type of incidental benefit is not clear, but it found the answer by analyzing whether Congress intended to benefit the plaintiff. When congressional intent is clear, the court held that there is a presumption of standing that can be overcome by a finding that a suit by this plaintiff would severely disrupt a complex administrative scheme. When such intent is not evident, there is a presumption that standing is lacking. This presumption can be overcome if there is some indication that the plaintiff is a peculiarly suitable challenger.⁸¹ The D.C. Circuit held plaintiff's economic claim to be outside RCRA's zone of interests, finding no evidence that Congress intended to benefit the competitive position of high-tech recyclers.⁸²

Organizational Standing

Environmental organizations must meet certain additional standing requirements. These groups can bring suits on their own behalf alleging injuries to their activities as organizations. More commonly, they sue as representatives of injuries to their members' environmental interests.

Suing on its Own Behalf

An organization suing in its own capacity must satisfy the injury-in-fact and other requirements applicable to an individual plaintiff. To show injury-in-fact, an organization must establish an injury to its activities. A general coincidence between the organization's goals and the statutory purpose is not sufficient. In Center for Auto Safety v. National Highway Traffic Safety Administration, for example, the D.C. Circuit held that a non-profit organization promoting fuel efficiency programs lacked standing in its own right to challenge fuel economy standards for light trucks.⁸³ The court found that damage to the group's commitment to effective energy conservation was not enough to show damage to its activities.⁸⁴

In National Wildlife Federation v. Burford, the district court held that the Federation lacked standing to sue on its own behalf in its challenge to BLM's decision to lift development restrictions on 180 million acres of public lands.⁸⁵ The Federation asserted injury to its ability to obtain information on BLM's program and to participate in BLM's decisionmaking. The Federation claimed that its educational program designed to inform its members of conservation issues was impaired by BLM's actions. Although this type of injury can be sufficient to support organizational standing, the district court held that the Federation failed to prove its allegations.⁸⁶

Suing on Behalf of Its Members

The Supreme Court has strongly endorsed representational standing.⁸⁷ The Court has observed that these suits benefit the individuals represented and the judicial system as a whole, since organizations often possess specialized expertise and interests.⁸⁸

The test for an organization seeking to bring a suit on behalf of its members was established in Hunt v. Washington Apple Advertising Commission, in which the Court required that (1) the organization's members would [19 ELR 10296] otherwise have standing to sue in their own right; (2) the interests the organization seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.⁸⁹

The first prong of the Hunt test simply requires that some of the members of the plaintiff organization would have standing to bring the suit themselves. Thus, the plaintiff must show that at least one member satisfies each of the constitutional and prudential requirements discussed earlier. The purpose of this requirement is to "weed out plaintiffs who try to bring cases, which could not otherwise be brought, by manufacturing allegations of standing that lack any real foundation."⁹⁰

The second prong of Hunt has recently been at issue in the D.C. Circuit. The leading case on the germaneness requirement is Humane Society of the United States v. Hodel.⁹¹ In that case, the court held that the Humane Society had standing to challenge on behalf of its members the Fish and Wildlife Service's decision to allow hunting in national wildlife refuges. The most troublesome issue for the court was whether the interests the Humane Society sought to protect were germane to its organizational purpose.⁹² The court concluded that the germaneness test requires only that an organization's litigation goals be pertinent to its organizational purpose. The court found support for this liberal reading in a Supreme Court decision recognizing several special advantages of representational suits.⁹³ This interpretation, the court reasoned, is consistent with the Supreme Court's probable purpose in adding the germaneness requirement: preventing litigious organizations from bringing suit on issues outside their realm of expertise and about which few of their members care.⁹⁴

The Humane Society court found that plaintiff had satisfied the germaneness requirement. The court held that the aesthetic interest of the Humane Society's members in viewing live animals is pertinent to the Society's humanitarian goals.⁹⁵ Although the Society's certificate of incorporation does not specifically mention as a goal the promotion of human appreciation of wildlife, an organization's organic papers are only strong evidence of organizational purpose and are not dispositive.⁹⁶ Further, the court noted that enhanced human appreciation of wildlife is clearly an implicit benefit of the Society's stated purpose of protecting all living things. That the organization's primary interest may diverge from the members' interests in the litigation is not a bar.⁹⁷

The final prong of Hunt is not difficult to satisfy. Suit by organizations seeking injunctive ordeclaratory relief generally do not require the participation of individual members.⁹⁸ Courts have required individual participation in suits seeking individualized monetary relief,⁹⁹ and when there are conflicts of interest within the organization or specific facts are needed to illuminate the issues.¹⁰⁰

Conclusion

Environmental organizations should become more vignant in response to the increased emphasis that some courts, most notably the D.C. Circuit, have placed on standing in recent years. While the D.C. Circuit is the source of most of the recent cases restricting standing, it is perhaps the most influential of the circuits. Further, a high percentage of environmental cases are filed there.

The spate of cases denying standing may in part be the result of complacency by environmental groups after years of success on the standing issue, or may be due to a restrictive view of standing by a few judges. Whatever the reason, plaintiffs would be wise to anticipate standing challenges by clearly spelling out in the complaint the alleged injury and its connection to the challenged activity. Affidavits from members and other proof should be available if plaintiff is put to the test. Plaintiffs can also head off challenges by focusing on the standing issue in the joinder of plaintiffs. If the standing of one plaintiff is established, courts need not consider the standing of other plaintiffs.¹⁰¹

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While complacency by environmental groups or a few judges with narrow views of standing may explain some of these cases, the D.C. Circuit has required plaintiffs to demonstrate injury-in-fact with an increasing degree of specificity. At first glance, it may not seem very troublesome for environmental groups to meet a higher threshold of proof by identifying members who are harmed by the challenged action. This trend, however, could impose a substantial burden on environmental organizations challenging government action affecting public lands or other broad programmatic actions. Environmental groups attempting to challenge government action at the programmatic stage often have difficulty precisely identifying specific injured members, since the alleged unlawful action may not have occurred. These groups could thus be precluded from challenging underlying government policies in certain situations if courts go too far in requiring proof of harm.

1. Wald, The D.C. Circuit: Here and Now, 55 GEO. WASH. L. REV. 718 (1987). Judge Wald also observed that one indication that the D.C. Circuit's standing jurisprudence is changing is the Supreme Court's recent reversals of several circuit decisions for being too strict rather than too liberal. Id. at 719 (citing Clarke v. Securities Industry Association, 479 U.S. 388 (1987), and International Union, UAW v. Brock, 477 U.S. 274 (1986)).

2. U.S. CONST. art. III, § 2, cl. 1. Another aspect of the "case or controversy" limitation on federal jurisdiction is the related doctrine of ripeness.

3. An oft-quoted justification for standing limitations is the Supreme Court's statement that standing is necessary "to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional issues." Baker v. Carr, 369 U.S. 186, 204 (1962). This statement has been criticized in K. DAVIS, ADMINISTRATIVE LAW TREATISE § 22.20 (1982 Supp.) ("The purpose of the law of standing is to determine who is justly entitled to use the judicial machinery, not to sharpen presentation of issues.")

4. The issue most commonly arises on a motion to dismiss or a motion for summary judgment. See FED. R. CIV. P. 12(b) and 56(c). Lack of standing can also be raised as a jurisdictional issue on appeal. See FED. R. CIV. P. 12(h)(3). A plaintiff may be required to show injury with greater specificity on a motion for summary judgment than on a motion to dismiss. See infra notes 33-45 and accompanying text.

5. See Bender v. Williamsport Area School District, 475 U.S. 534, 541 (1986); Hazardous Waste Treatment Council v. United States Environmental Protection Agency, 861 F.2d 270, 272, 19 ELR 20059, 20061 (D.C. Cir. 1988); National Wildlife Federation v. Burford, 699 F. Supp. 327, 329, 19 ELR 20341, 20342 (D.D.C. 1988).

6. See, e.g., Endangered Species Act § 11(g), 16 U.S.C. § 1540(g), ELR STAT. ESA 025 (any person); Federal Water Pollution Control Act § 505, 33 U.S.C. § 1365, ELR STAT. FWPCA 059 (any citizen); Resource Conservation and Recovery Act § 7002, 42 U.S.C. § 6972, ELR STAT. RCRA 034 (any person); Clean Air Act § 304, 42 U.S.C. § 7064, ELR STAT. CAA 043 (any person).

7. APA § 10, 5 U.S.C. § 702, ELR STAT. ADMIN. PROC. 007.

8. Middlesex County Sewerage Authority v. National Sea Clammers' Association, 453 U.S. 1, 11 ELR 20684 (1980).

9. See, e.g., Wilderness Society v. Griles, 824 F.2d 4, 11, 17 ELR 21117, 21121 (D.C. Cir. 1987). The Wilderness Society court observed that although Article III and APA § 10 standing are analytically distinct, the Supreme Court has not distinguished between the two. While Congress cannot override the constitutional requirements for standing, it can legislate away court-imposed prudential requirements. See infra notes 68-69 and accompanying text.

10. National Wildlife Federation v. Hodel, 839 F.2d 694, 703-04, 18 ELR 20646, 20650 (D.C. Cir. 1988).

11. K. DAVIS, supra note 3, at § 22.00.

12. 454 U.S. 464, 475 (1982).

13. Id. at 472 (citations omitted).

14. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153 (1970). See infra text accompanying notes 70-82.

15. See infra text accompanying notes 83-100.

16. Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1972) (denying standing but recognizing aesthetic and environmental interest); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 3 ELR 20536 (1973) (interest in use and enjoyment of natural resources cognizable); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 8 ELR 20545 (1978) (environmental and aesthetic consequences of thermal pollution of lakes in vicinity of nuclear power plants constitute injury-in-fact); Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 16 ELR 20742 (1986) (whale watching and studying by members of wildlife conservation groups adversely affected by the Secretary of Commerce's failure to cite Japan for overharvesting).

17. 405 U.S. 727, 2 ELR 20192 (1972).

18. Id. at 739, 2 ELR at 20193.

19. Id. at 734, 2 ELR at 20194. On remand, the Sierra Club's motion to amend its complaint to allege injury to aesthetic and environmental interests was easily granted. Sierra Club v. Morton, 2 ELR 20469 (N.D. Cal. July 6, 1972).

20. 412 U.S. 669, 3 ELR 20536 (1973).

21. SCRAP has been called perhaps the most liberal standing case ever issued by the Supreme Court. K. DAVIS, supra note 3, at § 22.19.

22. 412 U.S. at 683-84, 3 ELR at 20539.

23. Id. at 689 n.14, 3 ELR at 20540 n.14.

24. See K. DAVIS, supra note 3, at § 22.19 ("The law of standing is especially liberal to plaintiffs who have environmental interests at stake."). But see Center for Auto Safety v. Thomas, 847 F.2d 843, 853, 18 ELR 21118, 21124 (D.C. Cir. 1988) (evenly divided en banc court). In Center for Auto Safety, the separate opinion of five judges, in response to a suggestion from one judge that environmental interests have priority over other interests, stated that it "would be suprising indeed to find that [environmental] interests had, sub rosa, overtaken economic interests in the Supreme Court's pantheon of Article III values to the point where a more liberal test of cognizability governs them alone."

25. Sierra Club v. Morton, 405 U.S. at 739, 2 ELR at 20194.

26. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 482-487 (1982) ("standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy"); Allen v. Wright, 468 U.S. 737, 754 (1984); Humane Society of the United States v. Hodel, 840 F.2d 45, 51, 18 ELR 20636, 20639 (D.C. Cir. 1988). However, agency violations of procedural rights granted to plaintiffs by statute have been held to constitute injury-in-fact. See, e.g., Defenders of Wildlife, Inc. v. Hodel, 851 F.2d 1035, 1040, 18 ELR 21343, 21346 (8th Cir. 1988), rev'g 658 F. Supp. 43, 17 ELR 20882 (D. Minn. 1987); Oregon Environmental Council v. Kunzman, 817 F.2d 484, 491, 17 ELR 20756, 20758 (9th Cir. 1987); Trustees for Alaska v. Hodel, 806 F.2d 1378, 1380, 17 ELR 20323, 20325 (9th Cir. 1986).

27. See, e.g., Sierra Club v. Morton, 405 U.S. at 734, 2 ELR at 20194; SCRAP, 412 U.S. at 687, 3 ELR at 20540; Center for Auto Safety v. National Highway Traffic Safety Administration, 793 F.2d 1322, 1331, 17 ELR 20039, 20045 (D.C. Cir. 1986).

28. See, e.g., Wilderness Society v. Griles, 824 F.2d 4, 17 ELR 21117 (D.C. Cir. 1987).

29. Id. at 12, 17 ELR at 21120 ("When personal injury is at issue in a three-party case, it usually depends upon how likely it is that the third party's response to the challenged governmental action will injure the plaintiff at all." (emphasis in original)). SCRAP and Sierra Club v. Morton both involved threatened injury in a three-party case. See supra notes 17-24 and accompanying text.

30. 824 F.2d 4, 17 ELR 21117.

31. Id. at 12, 17 ELR at 21121.

32. Id. Plaintiffs may have been unable to identify specific lands because of the district court's refusal to allow discovery concerning the effect of BLM's decision on specific lands. The D.C. Circuit thus remanded the case to the district court to allow plaintiffs to conduct such discovery. Id. at 19-20, 17 ELR at 21125-26.

33. Id. at 16, 17 ELR at 21123. The court observed that a motion to dismiss under Federal Rule of Civil Procedure 12(b) may be decided on the pleadings alone, construed liberally in favor of the plaintiff, while a motion for summary judgment under Rule 56(c) requires an opportunity for supplementation of the record. Thus, a greater showing is required by plaintiff on a motion for summary judgment.

34. SCRAP, 412 U.S. at 689-690 n.15, 3 ELR at 20541 n.15. Several other courts have also found this distinction crucial. See, e.g., National Wildlife Federation v. Burford, 699 F. Supp. 327, 329, 19 ELR 20341, 20342 (D.D.C. 1988); Natural Resources Defense Council, Inc. v. Burford, 19 ELR 20740, 20741 (D.D.C. Nov. 17, 1988).

35. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 45 n.25 (1976).

36. 699 F. Supp. 327, 19 ELR 20341.

37. See infra notes 83-100 and accompanying text for a discussion of the special standing requirements for an organization suing on its own behalf or on behalf of its members.

38. 699 F. Supp. at 329, 19 ELR at 20342.

39. Id.

40. Id. at 331-32, 19 ELR at 20343.

41. Id. The district court's denial of standing is somewhat puzzling given the history of this litigation. The district court originally held that the Federation had standing, 676 F. Supp. 271, 16 ELR 20422 (D.D.C. 1985), and reaffirmed its holding on reconsideration. 676 F. Supp. 280, 16 ELR 20427 (D.D.C. 1986). The D.C. Circuit affirmed, 835 F.2d 305, 18 ELR 20328 (D.C. Cir. 1987), and denied defendant's petition for rehearing, directing the district court to proceed "with dispatch." 844 F.2d 889, 18 ELR 20857 (D.C. Cir. 1988). The district court relied heavily on the fact that the standing issue in the prior decisions arose on a motion to dismiss. However, the tone of the oral argument in the appeal pending before the D.C. Circuit indicated that the appellate court is not pleased to again be presented with the standing issue. National Wildlife Federation v. Burford, 699 F. Supp. 327, 19 ELR 20341 (D.D.C. 1988), appeal docketed, No. 88-5397 (D.C. Cir. Jan. 17, 1989).

42. 19 ELR 20740.

43. Id. at 20742.

44. Id. The court was puzzled that plaintiffs did not augment the record to support standing, given that the issue was first raised in 1983 and that the recent developments in standing jurisprudence require a more particularized showing of injury. Id. at n.2.

45. In the pending appeal to the D.C. Circuit in National Wildlife Federation v. Burford, the Federation argued that the incremental increase in specificity is not great. The Federation noted that the Supreme Court's critical footnote 15 in SCRAP stated that on summary judgment plaintiff might have had to simply name the specific forests used by its members. Brief for Plaintiff-Appellant at 34, National Wildlife Federation v. Burford (D.C. Cir. filed Jan. 17, 1989) (No. 88-5397).

46. 699 F. Supp. at 331-32, 19 ELR at 20343.

47. The decision in National Wildlife Federation v. Burford appears inconsistent with the D.C. Circuit's decision in National Wildlife Federation v. Hodel, 839 F.2d 694, 18 ELR 20646 (D.C. Cir. 1988), in which plaintiff alleged that more mining would be permitted on federal lands under the Secretary of the Interior's new interpretation of validly existing rights under the Surface Mining Control and Reclamation Act. Plaintiff submitted affidavits from members who alleged that they hike in a national forest and that some of the sub-surface coal rights held by third parties in the forest could qualify as validly existing rights under the new regulations. The court held that these allegations were sufficient to establish injury-in-fact. Plaintiff was "not required to specify precisely where the additional coal mining activity would take place within the forest and that their members intended to hike in exactly that location." Brief for Plaintiff-Appellant at 35, National Wildlife Federation v. Burford (D.C. Cir. filed Jan. 17, 1989) (No. 88-5397).

48. See Wald, supra note 1, at 721.

49. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 227 (1974).

50. See Wald, supra note 1, at 721.

51. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976).

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

53. Wilderness Society v. Griles, 824 F.2d at 17, 17 ELR at 21124.

54. Duke Power, 438 U.S. at 77-78, 8 ELR at 20548.

55. Id. at 74-76, 8 ELR at 20650. See also National Wildlife Federation v. Hodel, 839 F.2d at 705, 18 ELR at 20550; Humane Society of the United States v. Hodel, 840 F.2d 45, 51 n.5., 18 ELR 20636, 20639 n.5 (D.C. Cir. 1988).

56. See, e.g., Center for Auto Safety v. National Highway Traffic Safety Administration, 793 F.2d at 1335 n.70, 17 ELR at 20046 n.70 and cases cited therein.

57. 847 F.2d 843, 18 ELR 21118 (D.C. Cir. 1988).

58. Id. at 856, 18 ELR at 21126 (citing, inter alia, National Wildlife Federation v. Hodel, 839 F.2d at 708-709, 18 ELR at 20652, and Animal Welfare Institute v. Kreps, 561 F.2d 1002, 1010, 7 ELR 20617, 20620 (D.C. Cir. 1977)).

59. Id. See also Defenders of Wildlife v. Hodel, 851 F.2d 1035, 1043, 18 ELR 21343, 21347 (8th Cir. 1988). The Defenders of Wildlife court deferred to Congress' determination that the remedy for harm to plaintiff's interest in endangered species is consultation between the Secretary of the Interior and the agency conducting the action.

60. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. at 472; Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976).

61. See Allen v. Wright, 468 U.S. 737, 753 n.19 (1984); Center for Auto Safety v. National Highway Traffic Safety Administration, 793 F.2d at 1334, 17 ELR at 20046.

62. 688 F.2d 1263, 13 ELR 20072 (9th Cir. 1982).

63. Id. at 1268, 13 ELR at 20074.

64. 454 U.S. 151, 12 ELR 20237 (1981).

65. Id.

66. Id.

67. 454 U.S. at 474-75 (citing Warth v. Seldin, 422 U.S. 490, 499 (1975) and Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153 (1970)).

68. Data Processing, 397 U.S. at 154 ("Congress can, of course, resolve the question [of standing] one way or another, save as the requirements of Article III dictate otherwise."); Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982) (language in Fair Housing Act extends standing to full limits of Article III); Center for Auto Safety v. National Highway Traffic Safety Administration, 793 F.2d at 1335, 17 ELR at 20046; National Wildlife Federation v. Hodel, 839 F.2d at 704 n.7, 18 ELR at 20650 n.7.

69. These statutes contain citizen suit provisions granting the right to review to "any person" in certain situations. See supra note 6. In some cases where courts have not explicitly held that Congress eliminated the prudential requirements, the courts have interpreted these statutes to grant broad standing. See, e.g., Center for Auto Safety v. National Highway Traffic Safety Administration, 793 F.2d at 1337 n.86, 17 ELR at 20047 n.86.

70. For a criticism of the zone of interests test, see K. DAVIS, supra note 3, at § 22.02-11.

71. 397 U.S. 150 (1970). See also Barlow v. Collins, 397 U.S. 157 (1970) (companion case).

72. See K. DAVIS, supra note 3, at § 22.02-11.

73. 479 U.S. 388, 399-400 (1987).

74. Id. at 395 n.9.

75. Id. at 379.

76. Id. at 401.

77. 824 F.2d 4, 17 ELR 21117.

78. The court held, however, that plaintiffs had not shown injury-in-fact. See supra text accompanying notes 30-35.

79. 840 F.2d 45, 60, 18 ELR 20636, 20645 (D.C. Cir. 1988) (protection of members' interest in viewing live animals in national wildlife refuges bears a plausible relationship to the policies embodied in the Endangered Species Act, Refuge Recreation Act, and National Wildlife Refuge System Administration Act).

80. 861 F.2d 277, 282, 19 ELR 20063, 20066 (D.C. Cir. 1988).

81. Id. at 283, 19 ELR at 20066-67.

82. Id. at 284, 19 ELR at 20067-68.

83. 793 F.2d 1322, 17 ELR 20039.

84. Id. at 1328 n.41, 17 ELR at 20042 n.41. See also Hazardous Waste Treatment Council v. United States Environmental Protection Agency, 861 F.2d at 284, 19 ELR at 20069.

85. 699 F. Supp. 327, 19 ELR 20341. See also text accompanying notes 36-41.

86. 699 F. Supp. at 330, 19 ELR at 20342. The court found that the affidavit submitted by a Federation vice president was vague and conclusory.

87. International Union, UAW v. Brock, 477 U.S. 274 (1986).

88. Id. at 289.

89. 432 U.S. 333, 343 (1977). The Supreme Court recently has reaffirmed the Hunt test in International Union, UAW v. Brock, 477 U.S. 274, and New York State Club Association v. City of New York, 487 U.S. __, 108 S. Ct. 2225, 2231-32 (1988).

90. New York State Club Association v. City of New York, 108 S. Ct. at 2232.

91. 840 F.2d 45, 18 ELR 20636.

92. The court readily found that the Humane Society's members would have standing to protect their aesthetic injuries in their own right and that the declaratory and injunctive relief requested by the Society does not require the participation of any individual member. Id. at 53, 18 ELR at20640.

93. Id. at 53, 18 ELR at 20641-42. The court noted that the Supreme Court has recognized three advantages of representational suits that distinguish them from class actions, which are subject to more stringent requirements under Federal Rule of Civil Procedure 23:

Such organizations (1) "can draw upon a pre-existing reservoir of expertise and capital, … [possessing] specialized expertise and research resources relating to the subject matter of the lawsuit that individual plaintiffs lack"; (2) attract members whose "primary reason" for joining is "often to create an effective vehicle for vindicating interests that they share with others"; and (3) possess a self-policing mechanism guaranteeing a modicum of fair representation: "[t]he very forces that cause individuals to band together in an association will thus provide some guarantee that the association will work to promote their interests."

Id. at 55, 18 ELR at 20642-43 (quoting International Union, UAW v. Brock, 477 U.S. at 289-90).

94. Id. at 57, 18 ELR at 20642.

95. Id. at 59, 18 ELR at 20644.

96. Id. at 60, 18 ELR at 20644. The court observed that had the Society's statement of purpose included protecting member activities harmed by decreases in wildlife population, the inquiry into germaneness would have been unnecessary. Id. at 54 n.13, 18 ELR at 20640 n.13. Environmental organizations should thus consider reviewing their organic papers to ensure that they include all possibly relevant goals.

97. See also Hazardous Waste Treatment Council v. United States Environmental Protection Agency, 861 F.2d at 286, 19 ELR at 20068. The court held that the Council satisfied the germaneness requirement in its suit claiming that EPA's regulations governing the burning of used oil as fuel were not sufficiently stringent. The court also held, however, that one of the Council's challengers did not merit standing. See supra text accompanying notes 80-82. Plaintiff's primary intent was to create a market for its members' high-technology treatment services. However, plaintiff's articles of incorporation stated that one of its goals was the promotion of environmentally sound methods of treating hazardous waste. The court held the members' interest in receiving uncontaminated use oil was pertinent to plaintiff's environmental goals.

98. See Humane Society, 840 F.2d at 53 n.8, 18 ELR at 20640 n.8.

99. See, e.g., Warth v. Seldin, 422 U.S. 490, 515-516 (1975); Telecommunications Research & Action Center v. Allnet Communication Services, Inc., 806 F.2d 1093 (D.C. Cir. 1986).

100. See, e.g., Harris v. McRae, 448 U.S. 297, 320-21 (1980).

101. Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160, 12 ELR 20237 (1981) (digest). See also Hazardous Waste Treatment Council v. United States Environmental Protection Agency, 861 F.2d 270, 273, 19 ELR 20059, 20061 (D.C. Cir. 1988); Center for Auto Safety v. National Highway Transportation Safety Administration, 793 F.2d at 1328 n.41, 17 ELR at 20043 n.41. One commentator has stated that "[f]rom the standpoint of the plaintiff's lawyer in environmental litigation, perhaps the most significant principle which emerges from the case law on standing is that his client can ride the coattails of any one plaintiff who achieves standing." Beers, Standing and Related Procedural Hurdles in Environmental Litigation, 1 J. ENVTL. L. AND LITIGATION 65 (1986).