NWF v. Lujan: Justice Scalia Restricts Environmental Standing to Constrain the Courts

Karin Sheldon

Editor's Summary: NWF v. Lujan, the Supreme Court's landmark decision that amplifies the injury-in-fact standing requirement and the ripeness test determination of whether an agency action is final, reveals more than when an environmental group can go to court. Justice Scalia's opinion indicates a paradigm shift in the view of the proper role of the judiciary from that of securing public law principles to that of prescribing private law constructs derived from Marbury v. Madison. NWF v. Lujan posits whether the doctrines of standing and ripeness should be used to limit the countermajoritarian judicial branch to protecting the minority from the majority or whether a legitimate function of the courts is to inculcate into the executive branch the social principles enunciated by the legislature. The author examines the doctrine of standing, Justice Scalia's opinion and its implications for environmental law, and what practitioners can do to ensure that their cases are not dismissed on standing or ripeness grounds.

Ms. Sheldon is 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. Previously, she was a staff attorney with the Sierra Club Legal Defense Fund, where she represented environmental groups in lawsuits challenging governmental decisions affecting the public lands and their resources.

[20 ELR 10557]

The Supreme Court recently stunned environmentalists with a decision that limits their standing to challenge agency programs and imposes more stringent requirements for the proof of injury to environmental interests than any previous decision. In Lujan v. National Wildlife Federation,¹ its first ruling on environmental standing since Sierra Club v. Morton,² the Court concluded that the National Wildlife Federation (NWF or the Federation) lacked standing to challenge a program of the Bureau of Land Management (BLM) with major impact on the public lands. Justice Scalia, the principle author of the opinion, based the decision on both the procedural posture of the case and his vision of the limited role of the judiciary. This Article describes the general principles of standing, the Supreme Court's opinion and its implications, and what environmental practitioners can do to assure that the door to the courthouse remains open.

In National Wildlife Federation v. Lujan, the Supreme Court decided that the NWF failed to establish that its members have standing to challenge the land withdrawal review program of the BLM. Under the program, the BLM reviews withdrawals and classifications of its lands. Decisions to terminate classifications and withdrawals open public lands to mining and other commercial activities.

The Federation claimed that the program violated the Federal Land Policy and Management Act (FLPMA),³ the National Environmental Policy Act (NEPA),⁴ and the Administrative Procedure Act (APA)⁵ because the BLM failed to adequately consider the environmental impacts of decisions to terminate withdrawals and classifications or to provide appropriate public participation in the decisionmaking process. The Federation charged that although Congress intended the program to be a comprehensive review of the legal status of public lands necessary to achieve better land management, the BLM's sole motive was to remove roadblocks to mining and other commercial uses. At stake were 180 million acres of public land.

The case presented the conservative members of the Supreme Court a tantalizing opportunity to curb the excesses of standing decisions allowing environmental groups to challenge decisions of administrative agencies with widespread impacts on the environment. It offered the chance to disavow United States v. Students Challenging Regulatory Agency Procedures (SCRAP)⁶ and to set more stringent standards for demonstrating the injury-in-fact requirement of standing. Although the decision came as a shock to many, the Court's ruling reflects a trend in lower court decisions requiring plaintiffs alleging injury to environmental interests in public lands to establish a direct connection between use of the lands and the governmental action challenged.⁷

The opinion also reflects the judicial philosophy of its principle author, Justice Scalia. Justice Scalia believes that strict limitations on standing are necessary to confine the courts to their proper role of hearing individual grievances and protecting minority rights. Correcting agency programs is the province of the legislature.⁸ Thus it was "impossible" for the NWF to achieve the wholesale improvement in the land withdrawal review program it sought from the Court.⁹

The decision raises serious questions about the shape of future environmental litigation. Clearly, greater attention [20 ELR 10558] will be required to pleading and proof of standing. More troublesome is the Court's ruling that the interests of the NWF's members in the use of certain areas of public lands could not support standing to challenge the BLM's land withdrawal review program. This ruling may limit programmatic lawsuits, requiring the effort to change agency policy to be carried out through challenges to the individual decisions that implement a program. Such fragmented suits are likely to produce inconsistent results and have little overall impact.¹⁰

General Principles of Standing

Although the black letter law of standing is "numbingly familiar,"¹¹ it is still easier to plead standing than to discuss it. The doctrine is complex, made more so by conflicting court opinions, including the Supreme Court's, and by the fact that the issue is resolved on a case-by-case basis by reference to the particular allegations of the plaintiff. Some general principles can be distilled, however, as guides for pleading and proof, and as a context for examining the Supreme Court's ruling in NWF v. Lujan.

The purpose of the standing requirement is to assure that only those persons with a direct stake in the outcome of a dispute are permitted to invoke the jurisdiction of a court to resolve it.¹² Standing assures that the dispute is a real one, with real impact on the parties. Standing maintains the separation of powers among the branches of government by providing a limit on the involvement of the courts in legislative and executive actions.¹³ For Justice Scalia, standing is a "crucial and inseparable element" of the doctrine of separation of powers, a view that was critical to his opinion in NWF v. Lujan.¹⁴

Standing has both constitutional and "prudential" requirements — judicial determinations of what persons Congress intended to be plaintiffs in cases where the grant of standing is not clear on the face of the applicable statute.¹⁵

Constitutional Requirements

Article III of the Constitution limits the jurisdiction of the courts to actual "cases" and "controversies."¹⁶ To demonstrate standing for purposes of Article III, a plaintiff must show (1) that he suffered "injury in fact,"¹⁷ (2) that his injury was caused or is likely to be caused by the conduct of the defendant, and (3) that the injury is fairly redressable by the remedy sought.¹⁸ This three-pronged test — injury, causation, and redressability — was summarized by the Supreme Court in Valley Forge Christian College v. Americans United for Separation of Church and State.¹⁹ It requires a showing by the plaintiff 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."²⁰

The necessary factual predicate for each of the three constitutional elements of standing must "affirmatively appear in the record."²¹ This means that plaintiffs must be careful to properly plead standing and be prepared to prove it. A defendant may raise the issue at any stage of a lawsuit, or the court may consider it sua sponte. The level of proof required depends on the phase of the litigation in which the issue is raised. A motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure may be decided on the pleadings alone, with the allegations in the complaint construed in favor of the plaintiff. A motion for summary judgment under Rule 56(c), however, requires a greater showing of injury.²² In NWF v. Lujan, the fact that the standing issue arose in the context of summary judgment was critical to the outcome.²³

Injury. Since Warth v. Seldin,²⁴ the Supreme Court has emphasized that to satisfy Article III the injury that the party claims to have suffered or be about to suffer must be "distinct and palpable,"²⁵ not an "identifiable trifle."²⁶ This does not mean that the courts will not recognize standing in cases involving small matters, as long as the injury is concrete and direct.

Causation. The causation element of standing does not require absolute certainty, but a plaintiff must show there is a substantial likelihood that the defendant's action would result in the injury claimed.²⁷ The challenged action need not impact directly on the plaintiff. An injury caused by a third party responding to a governmental action supports standing to challenge that action.²⁸

An injury must be reasonably imminent to warrant judicial involvement. Remote or speculative injuries do not support standing.

Governmental actions or decisions that may cause injury must be final.²⁹ Courts are not in the business of giving [20 ELR 10559] preventive legal advice and will hear no case before its time. In this respect, the case or controversy limitation on jurisdiction is an aspect of the doctrine of ripeness. Indeed, the Supreme Court's holding that there was no final agency action ripe for review was central to its determination that the NWF lacked standing in NWF v. Lujan.³⁰

The Supreme Court devised a two-question ripeness test in Abbott Laboratories v. Gardner:³¹ whether an issue poses a "purely legal" challenge to final agency action and whether the hardship to the parties of withholding review would be serious and direct.³² Both questions look very much like an inquiry into injury. A serious and direct hardship is real, not abstract, and would "adversely affect" or "aggrieve" a party seeking review.

Redressability. Finally, under the Constitution a plaintiff must show that the relief requested from the court is likely to remedy the alleged injury.³³ If the requested relief is not meaningful or would not improve the plaintiff's situation, a court may deny standing. For example, in Gonzales v. Gorsuch,³⁴ the U.S. Court of Appeals for the Ninth Circuit denied standing to the plaintiff because the relief he sought, an injunction against the expenditure of funds for development of an areawide wastewater treatment plan, would not redress the injury to his use of San Francisco Bay. By the time the case was brought, the money had been spent.

Prudential Requirements. In addition to the three constitutional requirements, the courts impose "prudential" limitations on persons seeking to invoke their jurisdiction.³⁵ As a matter of prudence, the courts may decline to grant standing to a plaintiff in the absence of a clear statutory statement that standing exists.³⁶ As Justice, then Judge, Scalia stated: "The courts [invoke] . . . prudential factors, not by virtue of their own inherent authority to expand or constrict standing, but rather as a set of presumptions derived from the common-law tradition designed to determine whether a legal right exists."³⁷

The Supreme Court summarized the prudential principles of its earlier cases in Valley Forge. The Court concluded that to have standing, a plaintiff must assert his own legal rights and interests, not those of a third party. The interests must be specific, not "abstract questions of wide public significance," which amount to "generalized grievances,"³⁸ and which are most appropriately addressed by the legislature. Finally, the Court ruled that plaintiff's complaint must fall within "the zone of interests" protected by the statute in question.³⁹ All of these principles are discussed in NWF v. Lujan, with the Court paying particular attention to the requirement that a plaintiff assert his own, individualized injury, not a generalized grievance.⁴⁰

The zone-of-interests test has come to be the most important of the prudential limitations on standing, particularly in cases involving the APA. Indeed, in Clarke v. Securities Industry Association,⁴¹ the Court stated that the zone-of-interests test is "most usefully understood as a gloss" on the APA.⁴² The test is as follows:

A guide for determining whether, in the view of Congress' evident intent [in the APA] to make agency action presumptively reviewable, a particular plaintiff should be heard to complain of a particular agency action. 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 implicated in the statute that it cannot reasonably be assumed that Congress intended the suit.⁴³

The D.C. Circuit expressed a useful, and shorter, definition of the zone-of-interests test in Humane Society of the United States v. Hodel.⁴⁴ To be within the zone of interests of the statute in question, a plaintiff must demonstrate a plausible relationship between his interests and the overall policies of the statute.⁴⁵

Statutory Standing

Congress may eliminate prudential requirements altogether and confer standing by statute, subject only to the injury-in-fact requirement of Article III.⁴⁶ It has frequently done so, particularly in environmental statutes, through "citizen suit" provisions granting the right to judicial review for any "person" or "citizen" who meets the conditions of the statute.⁴⁷ Citizen suit provisions do not abrogate traditional standing principles. Often, "citizen" or "person" is defined more narrowly than the bare words suggest, approximating the prudential or constitutional limitations on standing. For example, in § 505 of the Federal Water Pollution Control Act, a citizen is defined as "a person or persons having an interest which is or may be adversely affected,"⁴⁸ a phrase that comes close to articulating the Article III requirement of injury in fact and the prudential limitation of impact on specific individual rights and interests.

The most significant statutory grant of standing for pur[20 ELR 10560] poses of environmental law is probably the APA. Section 10 of the APA provides that "a person . . . adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof."⁴⁹ As pointed out in NWF v. Lujan, the section has two separate requirements for standing: first, there must be a final agency action, and second, that action must adversely affect the aggrieved party seeking to challenge it.⁵⁰ The APA is regarded almost as a universal grant of standing (a view that Justice Scalia does not share)⁵¹ because it declares that anyone considered adversely affected or aggrieved by agency action under a relevant statute has standing to seek review of the action under that statute.⁵² A "relevant statute" may be the NEPA⁵³ or the Mining Law of 1872.⁵⁴

Environmental Standing

Before 1970, courts generally conferred standing only on those who could show harm to their economic interests. Beginning in 1970 with Sierra Club v. Morton,⁵⁵ however, the Supreme Court recognized that noneconomic, widely shared injury to environmental, recreational, and aesthetic interests is sufficient to support standing: "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."⁵⁶

Sierra Club v. Morton remains the most important articulation of the requirements of environmental standing in all cases in which no citizen suit provision or other explicit statutory grant of standing is available. The Court held that an organizational interest in a problem is insufficient to support standing: a plaintiff must allege actual, individualized injury. To do this, an organization must establish that some of its members use the land subject to the agency's action for purposes and activities (e.g., recreation, photography, and nature study) that would be adversely affected by the action.⁵⁷ The formula Sierra Club v. Morton set forth has not been changed since it was decided, although recent decisions, including The Wilderness Society v. Griles,⁵⁸ NRDC v. Burford,⁵⁹ and Idaho Conservation League v. Mumma⁶⁰ interpret the requirements more stringently.⁶¹

Generally, environmental groups sue on behalf of their members, alleging injury to members' environmental interests. The test for an organization seeking to represent its members was established in Hunt v. Washington Apple Advertising Commission,⁶² and recently reaffirmed in International Union, United Auto Workers v. Brock.⁶³ The Supreme Court requires that an organization's members have standing to sue in their own right, that the interests the organization seeks to protect are germane to its purposes, and that neither the claim nor the relief requested requires the participation of individual members. An environmental organization may sue on its own behalf as well, for injury to its activities and functions as an organization. A mere interest in an issue will not suffice: actual impact on the organization is required.

National Wildlife Federation v. Lujan

All of this background only partially explains the Supreme Court's decision in NWF v. Lujan. Other factors, principally the judicial philosophy of Justice Scalia, have as much to do with the outcome of the case as the black letter law of standing. It is these factors that are most problematic for future environmental litigation.

Background

In 1976, Congress enacted the FLPMA,⁶⁴ which repealed most of the public land classification and disposal statutes of the 1800s and early 1900s and stated an explicit policy of retention of public lands in federal ownership. The authority of the Secretary of the Interior to classify and withdraw lands was made subject to FLPMA. A "withdrawal" removes a particular tract of land from the public domain and thus from the operation of one or more disposal statutes. A "classification" designates lands for retention and management and frequently segregates the land from the operation of various disposal laws.

FLPMA directs the Secretary of the Interior, through the BLM, to carry out land-use planning for the public lands by reviewing existing classifications in the planning process.⁶⁵ The Secretary is authorized to "modify or terminate" classifications, consistent with land-use plans and to "make, modify, extend or revoke withdrawals."⁶⁶ The [20 ELR 10561] Secretary is also directed to review all existing classifications and withdrawals for western public lands by 1991 to determine whether, and for how long, continuation of the withdrawals and classifications would be consistent with statutory objectives.⁶⁷ Section 701(c) states, however, that all withdrawals, reservations, and classifications are to remain in effect until modified.

The land-status review actions (i.e., the decisions terminating classifications or revoking withdrawals) carried out pursuant to these statutory provisions were the subject of the NWF's challenge in NWF v. Lujan.

The Litigation

Until 1981, the BLM took little action to review existing classifications or withdrawals. In 1981, however, after completing an inventory of the withdrawn and classified lands, the Bureau began a systematic review under what it called a "land withdrawal review program."⁶⁸ The Bureau's stated objective was to "eliminate all unnecessary withdrawals . . ., opening as many acres as possible to the operation of the mining and mineral leasing laws."⁶⁹ Priority attention was also given to terminating classifications that segregated lands from mining or mineral leasing or both.⁷⁰ By mid-1985, the Bureau had terminated classifications and revoked withdrawals for approximately 180 million acres of public lands,⁷¹ thereby making these lands available for commercial uses, including mining and mineral leasing.

The NWF filed suit in July 1985, challenging the land withdrawal review program as violative of FLPMA, NEPA, and the APA. Specifically, the Federation claimed the Bureau did not adequately evaluate the environmental effects of the program or provide sufficient public participation in the decisionmaking process. In its amended complaint, the NWF alleged:

NWF and its members are suffering and will continue to suffer injury in fact as a result of the challenged actions. Members of NWF use and enjoy the environmental resources that will be adversely affected by the challenged actions. They regularly use these resources for fishing, hunting, bird and wildlife watching, canoeing and boating, hiking, camping, and other similar activities. These persons' use and enjoyment of these resources will be irreparably injured if the defendants are permitted to terminate protective land use restrictions and thereby open up public lands to exploration, development, and disposal, without the development of land use plans, without prior preparation of adequate environmental impact statements, and without compliance with applicable laws, regulations, and procedures. Among other things, the challenged actions will adversely affect plaintiff and its members by destroying fish and wildlife habitat, and by impairing natural beauty.⁷²

The NWF also alleged that it was injured in its own right as an organization by the government's refusal to provide information about the program and an opportunity to participate in the decisionmaking process for it.⁷³

Attached to the Federation's complaint was a list of 814 examples of land-status actions, including terminations of classifications and revocations of withdrawals, taken by the Bureau as part of its land withdrawal review program since January 1981.⁷⁴

In December 1985, the district court granted the Federation's motion for a preliminary injunction prohibiting the BLM from terminating or altering any withdrawal, classification, or designation of land. The court denied the government's motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure for failure to demonstrate standing.⁷⁵ The Court of Appeals for the D.C. Circuit affirmed both orders.⁷⁶

The Federation supported its allegations of standing in response to the government's motion to dismiss with two affidavits from its members. The "Peterson" and "Erman" affidavits claimed use of public lands for recreation and aesthetic enjoyment "in the vicinity" of lands covered by two of the land-status actions listed in the attachment to the complaint.⁷⁷

On a petition for rehearing filed by the government, the court of appeals vacated the injunction but upheld its denial of the motion to dismiss and ordered the parties to proceed with the litigation "with dispatch."⁷⁸ Back before the district court, the government reasserted its claim that the Federation lacked standing, this time in a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. After the argument on the motion, as part of a response to the court's request for additional briefing, the NWF submitted four additional affidavits in support of standing. The district court rejected these affidavits as untimely. It granted the government's motion for summary judgment, finding the Peterson and Erman affidavits insufficient to support a challenge to either the individual land-status decisions to which they related or the land withdrawal review program.⁷⁹

The court of appeals reversed, somewhat testily, holding the Peterson and Erman affidavits sufficient to support standing to challenge the Bureau's program and ruling that the district court abused its discretion in rejecting the four additional affidavits offered after the summary judgment argument.⁸⁰ The court of appeals also ruled that the issue was decided in the first round of the litigation and, therefore, the district court was not free to revisit it.⁸¹

The government filed a petition for a writ of certiorari on October 10, 1989, presenting the Supreme Court with the following tantalizing question:

Whether, in a lawsuit challenging a vast array of government decisions affecting the use or disposition of approximately 180,000 acres of public land, an environmental organization may establish its standing to sue by relying [20 ELR 10562] on an affidavit asserting that one member of the organization makes use of property "in the vicinity of" a particular 2,000,000-acre parcel, only 4,500 acres of which were affected by one of the challenged decisions.⁸²

The Supreme Court Opinion

The Supreme Court, in a five-to-four opinion, held that the NWF lacked standing to challenge the government's land withdrawal review program. The Supreme Court divided its review of the standing issue, considering first, whether the Peterson and Erman affidavits established the Federation's right to judicial review of the government's actions and second, whether the four additional affidavits proffered in response to the district court's briefing order did so. The Court held that the Federation failed to prove standing in either case, but for different reasons.

The Peterson and Erman Affidavits. The Peterson and Erman affidavits were insufficient because they did not demonstrate that plaintiffs were "adversely affected or aggrieved" by the Bureau's actions within the meaning of § 10 of the APA. The affidavits failed to include specific facts showing that the affiants' recreational use and enjoyment extended to the particular parcels of land covered by the Bureau action challenged and, therefore, they did not establish that the affiants were "actually affected." The averments that Peterson and Erman used lands "in the vicinity" of the large areas subject to land-status orders were insufficient to confer standing.⁸³

The Court did find that both the final agency action requirement and the zone-of-interests test of § 10 were met by the Peterson and Erman affidavits. Both affidavits referred to particular land status orders listed in the appendix to the complaint.⁸⁴ With respect to the zone-of-interests test, the Court stated, "We have no doubt that 'recreational use and aesthetic enjoyment' are among the sorts of interests [FLPMA and NEPA] were specifically designed to protect."⁸⁵

The sole issue on which the affidavits foundered was their failure to state specific facts supporting the general allegations of injury. In this instance, the facts alleged did not tie the affiants' land use and enjoyment to the particular parcels affected by the government's action.

[W]here the fact in question is . . . whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action[,] Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members use unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action.⁸⁶

The Court did not address whether the Peterson and Erman affidavits could support the Federation's challenge to the whole land withdrawal review program.

The Additional Affidavits. The four additional affidavits were found wanting for quite different reasons. First, the Court held that the program was not a final agency action within the meaning of the APA, and, therefore, was not ripe for review. The Court characterized the program as a host of individual actions and decisions, "the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classification of public lands and developing land use plans as required by FLPMA."⁸⁷ The Court regarded these individual decisions as actions with "future effect," announcements of the Bureau's future intent with respect to certain activities on "vast expanses of territory." Because of this future effect, the decisions were not ripe for challenge by Federation members.⁸⁸

Second, the Court held that even if some of the individual actions identified by the Federation were ripe for review, and adversely affected interests of Federation members, the standing of those members to challenge the particular matters would not support a lawsuit seeking "wholesale correction" of the flaws in the withdrawal review program. Such programmatic improvement could only be done by the Bureau itself or by Congress.

Respondent cannot seek wholesale improvement of this program in the courts, by decree, rather than in the offices of the department or in the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm.⁸⁹

Understanding the Supreme Court's Opinion

The Procedural Posture of the Case. Several factors, both explicit and implicit, are critical to understanding the Court's opinion. The procedural posture of the case was one essential determinant of its outcome. Because the issue of the Federation's standing was raised by the government in the context of summary judgment, the district court held that the Federation had a greater burden to prove standing than it did to oppose the government's motion to dismiss. It could not rest on the allegations in its pleadings. Rather, it was required by Rule 56(e) of the Federal Rules of Civil Procedure to "set forth specific facts showing that there is a genuine issue for trial." Under Rule 56, when no such showing is made, the moving party is entitled to judgment because the nonmoving party has failed to meet the burden of proof on an essential element of its case. The Supreme Court agreed with the district court that the Peterson and Erman affidavits were insufficient for purposes of summary judgment.⁹⁰

The District Court's Discretion. A second factor important to the outcome of the case is the Court's ruling that despite the fact that the district court had decided during the preliminary injunction phase of the litigation that the Federation had standing, a ruling affirmed twice by the court of appeals, the refusal of the district court to accept additional affidavits was not an abuse of discretion. The Court emphasized that Rule 56 requires strict compliance and parties are held responsible for establishing the [20 ELR 10563] existence of genuine issues for trial, regardless of the passage of time or rulings made in earlier phases of a lawsuit.⁹¹

Standing as an Element of the Separation of Powers. A third, and likely the most critical, factor in the outcome of the decision is the view of its primary author, Justice Scalia, that limitations on standing must be strictly enforced in order to confine the courts to their constitutionally assigned role of protecting individual rights, and to prevent the "over-judicialization of the processes of governance."⁹²

Justice Scalia does not explicitly write that the NWF lacked standing because it sought to protect widely shared interests in how public lands are managed or because it challenged a governmental program. Rather, he holds that the program is not a final agency action, and therefore, the case is not ripe for review, even if particular land-status decisions might be.

Ripeness is often a "metaphor for deeper concerns of political regulation" and ripeness cases "occasions for judicial self-determination."⁹³ As Brian Murchison perceptively noted, "[W]hen an appellate court decides not to decide an otherwise reviewable case in the politically charged field of regulation, it is always worth knowing why. The reasons given for deferring judgment may tell us about the court's vision of itself and the public law process."⁹⁴

In NWF v. Lujan, Justice Scalia uses the ripeness doctrine as a way of "maneuvering" standing jurisprudence away from "the Court's SCRAP-era willingness to discover breathlessly broad congressional grants of standing" toward a return to what he calls the "original understanding" of standing as an integral part of the doctrine of separation of powers.⁹⁵

In Justice Scalia's view, the separation of powers doctrine requires each of the three branches of government to restrict itself to its constitutionally allocated sphere of activity.⁹⁶ The province of the courts, as described in Marbury v. Madison,⁹⁷ is "solely to decide the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have discretion."⁹⁸

Standing is an essential means of restricting the courts to this constitutionally assigned role.

[T]he law of standing roughly restricts courts to their traditional undemocratic role of protecting individuals and minorities against impositions of the majority, and excludes them from the even more undemocratic role of prescribing how the other two branches should function in order to serve the interest of the majority itself.⁹⁹

Justice Scalia perceivesa disturbing shift away from the "traditional and legitimate" role of the courts. By expanding the doctrine of standing to include persons with generalized interests in governmental decisions, the courts usurp the authority of the political branches as guarantors of "majority rights" and become political forums for public policy debates.

The great change that has occurred in the role of the courts in recent years results . . . in [large] measure . . . from [their] ability to address both new and old issues promptly at the behest of almost anyone who has an interest in the outcome. . . . The sine qua non for emergence of the courts as an equal partner with the executive and legislative branches in the formulation of public policy was the assurance of prompt access to the courts by those interested in conducting the debate.¹⁰⁰

For Justice Scalia, to maintain the constitutionally appropriate separation of powers, courts must strictly enforce the requirement that a plaintiff show he suffered a distinct, individualized injury not suffered by the citizenry as a whole.¹⁰¹ This rules out standing to challenge governmental programs or actions with widespread impacts or widely shared effects. The interests affected by such generalized actions are "majoritarian." While one person may care more about a generalized governmental action than another citizen, in the absence of individualized injury, he lacks the distinctive harm necessary to invoke the jurisdiction of the courts.¹⁰²

Justice Scalia cites the D.C. Circuit's landmark decision in Calvert Cliffs Coordinating Committee v. Atomic Energy Commission¹⁰³ as an example of courts gone wrong on standing. Justice Scalia believes Calvert Cliffs "began the judiciary's long love affair with environmental litigation."¹⁰⁴ He compares, unfavorably, the opening paragraph of Calvert Cliffs, which describes the role of the courts as providing judicial assistance in protecting the natural environment and assuring that "important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy,"¹⁰⁵ with what he views as the appropriate province of the courts outlined in Marbury v. Madison.¹⁰⁶ For Justice Scalia, the courts have no business in assuring that legislative promises become reality. As long as no "peculiar harm to particular individuals" is involved, it is "a good thing" if "important legislative purposes" are "lost or misdirected in vast hallways or elsewhere."¹⁰⁷ For him, "governmental mischief whose effects are widely distributed is more readily remedied through the political process, and does not call into play the distinctive function of the courts as guardians against oppression of the few by the many."¹⁰⁸

Thus, in NWF v. Lujan it was "impossible," in Justice Scalia's startling words, for the Federation's affidavits to support standing to challenge the entirety of the land [20 ELR 10564] withdrawal review program.¹⁰⁹ No matter how many affidavits the Federation submitted, in Justice Scalia's view it should never be able to achieve improvements in the program because it asked the wrong branch of government for help. Absent an explicit congressional authorization to correct the BLM's review process on a systematic level, any fixing of the withdrawal review program must be done by Congress.¹¹⁰

The Present Effect of Decisions to Revoke Withdrawals and Classifications. To reach his conclusion that the government's land-status decisions were not ripe for review, Justice Scalia ignored their present adverse effect on the interests of the NWF's members. By revoking withdrawals and classifications, the government made protected lands available for mining and mineral leasing. According to the government, under the terms of the Mining Law of 1872, it has no authority to prohibit mineral exploration and development on lands that are available for entry and location.¹¹¹ It retains the authority to control and condition mining operations to prevent unnecessary and undue degradation of the environment, but only to the point that such control does not constitute a taking.¹¹² Once lands are legally available for mining, the government has no authority to preserve them unimpaired.

In a footnote based largely on an affidavit submitted by the BLM, Justice Scalia concluded that "before any mining use involving more than a negligible disturbance can take place, there must occur either agency action . . . or agency inaction."¹¹³ This statement implies that there is a future decision to be made by the government whether to allow mining activities. The BLM's affidavit, contradicting the position usually taken by the government,¹¹⁴ suggests that environmentally disturbing activities may be prohibited at a later stage, making the decision to revoke a withdrawal or classification and open the lands to mining "nothing more than a paper transaction."¹¹⁵

Justice Scalia knows better. The issue of when an irrevocable commitment of the mineral resources of the public lands is made was before him as a member of the Court of Appeals for the District of Columbia Circuit in Sierra Club v. Peterson.¹¹⁶ Justice, then Judge Scalia, considered whether the government is required to prepare an environmental impact statement (EIS), pursuant to NEPA, prior to issuing oil and gas leases on federal lands under the Mineral Leasing Act of 1920. NEPA requires that an impact statement be prepared before an agency makes an "irreversible, irretrievable commitment" of resources to a particular action.¹¹⁷ The government claimed that the issuance of oil and gas leases were merely a paper transaction with no physical impact on the environment, and, therefore, no EIS was necessary before their issuance.

Much of the oral argument of the case concerned the question of the government's authority to prohibit all surface-disturbing activities on a leasehold once a lease is issued. The appellant Sierra Club contended, and the government acknowledged, that an oil and gas lease by its terms vests in the lessee the right to explore for and develop oil and gas and that although the authority to condition and control the manner, method, and timing of these activities is retained by the government, the discretion to completely disapprove them is not.¹¹⁸ The court of appeals, Justice Scalia included, agreed with the Sierra Club that leasing represents the point of irreversible, irretrievable commitment of the resources of the public lands to oil and gas because it is the point at which the government's authority to disapprove environmentally damaging activities is lost. For this reason, an EIS must be prepared before leases are issued, even if it is not certain that the leasehold will ever be explored or developed.¹¹⁹

In the context of hard rock mining, the government takes the position that the point of irreversible, irretrievable commitment to mining is when the lands are made legally available under the Mining Law for entry and location. After that point the government states that its authority is limited to mitigation, unless the lands are withdrawn before patenting or the agency chooses to exercise its constitutional power of eminent domain.¹²⁰ On the basis of this analysis, the standing decision in NWF v. Lujan would have been different. Thus, even though a plaintiff may not know exactly where or when mining will occur within an area of land opened to the operation of the Mining Law, its interests in the recreational, aesthetic, and environmental uses of that land are impacted by the commitment of the lands to mining. Such a plaintiff may be able to challenge particular mining operations at a later date, but the best that can be done is likely to be mitigation of damage. The opportunity to preserve the land and prevent all environmental harm has been lost at the point lands are committed.

At least one appellate court agrees that injury occurs at the point a land withdrawal decision is made, makinga challenge to such a decision immediately ripe for review. In Shiny Rock Mining Corp. v. United States,¹²¹ the U.S. Court of Appeals for the Ninth Circuit held that Shiny Rock's challenge to a public land order withdrawing lands in the Willamette National Forest from appropriation under the Mining Law was barred by the statute of limitations. [20 ELR 10565] Shiny Rock did not challenge the land order until its application for a patent to a claim on these lands was rejected by the BLM on the basis of the order. The company argued that until the patent application was rejected it had not been injured by the public land order and therefore had no standing to challenge it within the statutory period. The court ruled that the injury to Shiny Rock, and all other mining claimants similarly situated, incurred when the amount of land available for mining claims decreased by virtue of the public land order.¹²² On the basis of this analysis, the standing decision in NWF v. Lujan would have been different.

It is possible for the Court's ruling that the government's decision to revoke a withdrawal or classification is not final for purposes of judicial review until mining operations or other damaging activities are proposed to be viewed as the "silver lining" to its decision.¹²³ The Court appears to move the point of irrevocable commitment of resources of the public lands to mining from the decision to make lands legally available for mining to the decision approving mining operations. If, as the Court holds, the decision to open lands for mining is not reviewable when it is made because it has no effect, it must be reviewable at the operational stage when it causes injury to affected parties. Persons injured by proposed mining operations may challenge the underlying land order that opened the lands to mining as well as challenge the operations themselves. A decision to revoke a withdrawal or classification that was not made in accordance with law is void ab initio.

Implications of the Supreme Court's Decision

There are a number of implications of the Supreme Court's decision, most of them adverse to lawyers representing environmental groups. Persons worried about judicial economy and overloaded district court dockets and persons concerned about how best to achieve agency compliance with law are also adversely affected by this decision.

Limitation on Meaningful Judicial Review. The Supreme Court's decision may preclude meaningful judicial review of significant issues at the most appropriate level. The underlying purpose of the withdrawal review program at issue in NWF v. Lujan is not simply to remove obstacles to mining on the public lands, but to carry out a comprehensive review of withdrawals and classifications to provide for better public land management. The BLM set about this task in ways that appeared to the NWF to violate FLPMA, NEPA, and the APA, statutes whose zones of interests clearly encompass those of the Federation, and whose statutory language directs the agencies to carry out the review process in a particular way. The Federation alleged that the violations of these statutes infected the entire review program and should be halted. Essentially, all the NWF sought from the court was a determination of whether the government broke the law in reaching the individual decisions.

If such a claim is unreviewable, environmental and other plaintiffs may be constrained in their efforts to change the way agencies carry out congressional mandates. Disconnected review of individual decisions is likely to produce inconsistent legal results and will impact an overall program very little.

Proliferation of Lawsuits. The fragmented review called for by the Court's decision will result in a proliferation of lawsuits, taxing court dockets and the financial resources of environmental groups. The same issues will be presented repeatedly with no clear final resolution. The government will contend that individual decisions on the same legal issues from different courts are only law in the circuit involved and have no broader application.

Disproportionate Impact on Environmental Litigation. The Court's decision will have a disproportionate impact on environmental litigation. More than virtually any other field of public law, plaintiffs in environmental cases assert widely shared interests and challenge governmental actions with widely felt impacts. Unlike areas of public law, such as civil rights, there is no constitutional basis for protecting interests in a clean environment. Consequently, it is more difficult to prove the particularized injury Justice Scalia believes essential to establish standing.

To the extent that NWF v. Lujan represents the first of several possible "maneuvers"¹²⁴ by Justice Scalia and the other conservative members of the Supreme Court away from SCRAP and the public law principles of standing developed in the 1960s and 1970s, back to the private law notions that preceded them, environmental law may be in some trouble. There may be a need for an explicit congressional grant of standing that defines injury to interests in the environment in a sufficiently broad way to permit challenges to governmental programs that impact those interests, or at least expresses Congress' intent to allow persons who are among those affected by governmental actions harming the environment to invoke the jurisdiction of the courts to redress their grievances. As long as the constitutional requirements are satisfied, Congress may confer such standing by statute.¹²⁵

What Can Practitioners Do?

The ultimate question, of course, is what can environmental lawyers do to assure standing for their clients? Careful drafting, attention to present injury, and challenges to individual actions should secure judicial review of environmental grievances.

Careful Drafting

Environmental lawyers should pay more attention to the pleading and proof of standing, particularly at the summary judgment stage of a lawsuit. Although the Sierra Club v. Morton formula is not changed by NWF v. Lujan, there is a new emphasis on specificity: plaintiff environmental groups must show that members use the particular lands where the adverse action will occur. Whether there must be a member on every acre or whether members must be accompanied by a surveyor who can describe the lands being used by township and range is unclear, but [20 ELR 10566] unlikely. Care should be taken, however, to choose a sufficient number of representatives to support the allegations of use and to identify the specific land areas affected by the government's action.

Attention to Present Injury

Practitioners must be careful to establish the present injury to plaintiff's interests from the government's action. This is probably the most important factor in the opinion, and it reflects the trend of other recent decisions. As noted above, lack of present injury was the rationale for the rulings in The Wilderness Society v. Griles, NRDC v. Burford, and Mumma, all of which held that plaintiffs lacked standing because the threatened injury was too remote and speculative to provide a sufficient basis for standing.

Refocus the Lens

NWF v. Lujan may restrict the opportunities for programmatic lawsuits. It emphasizes the importance of challenges to individual actions based on individual injuries. To avoid the exhausting exercise of fighting individual fires across the public landscape, environmental lawyers should refocus their litigation lens away from the programmatic and toward suits of a more modest scope. Such suits can be designed, however, to produce decisions that will have more general applicability than results from contesting a single action. By packaging together several good, bad, and ugly fact situations that present the same legal issue, a convincing case can be made that the agency is failing to comply with applicable law in a number of similar contexts. The resulting decision is likely to be more generic than one tied to a single set of circumstances.

Conclusion

NWF v. Lujan presents a challenge to environmental lawyers to frame cases and plead and prove them in accord with more stringent standards for standing than they had in the past. Opportunities for programmatic lawsuits may be more limited, with much greater emphasis on challenging individual agency actions that injure particular members of plaintiff environmental groups. This is hardly the death knell of environmental litigation. It is important to remember that environmental law, virtually unknown 20 years ago, has grown and developed primarily from individual cases. It has been the courts' recognition of the harm posed by particular agency actions to particular environmental resources and values that has been responsible for major changes in agency policy and compliance with law. Environmental cases present issues of passion and conscience as well as law, and courts respond.

Justice Scalia's views on the separation of powers and the limited role of the courts are not shared by most jurists or legal scholars.¹²⁶ Many courts believe that injury to the widely shared interests of citizens in the wise management of the public lands quite appropriately supports standing by a few of those citizens to challenge agency actions that injure those interests. Many courts still regard providing assistance in the protection of the environment as an important judicial role.

1. Lujan v. National Wildlife Fed'n, 110 S. Ct. 3177, 20 ELR 20962 (U.S. June 27, 1990), [hereafter NWF v. Lujan].

2. 405 U.S. 727 (1972).

3. 43 U.S.C. §§ 1701-1782, ELR STAT. FLPMA 003-037 (1982).

4. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 003-014 (1970).

5. 5 U.S.C. §§ 701-706, ELR STAT. APA 007 (1966).

6. 412 U.S. 669 (1973).

7. See, e.g., The Wilderness Soc'y v. Griles, 824 F.2d 4 17 ELR 21117 (D.C. Cir. 1987); NRDC v. Burford, 716 F. Supp. 632, 19 ELR 20740 (D.D.C. 1988); Idaho Conservation League v. Mumma, No. CV 88-197-M-CCL (D. Mont. July 8, 1990).

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

9. NWF v. Lujan, 20 ELR at 20967.

10. In his recent Comment, Barnett Lawrence predicted that such a restriction on standing was in the wings and warned of its chilling effect on programmatic lawsuits. Comment, Standing for Environmental Groups: An Overview of Recent Developments in the D.C. Circuit, 19 ELR 10289, 10293 (July 1989).

11. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 222 (1988-89).

12. Baker v. Carr, 369 U.S. 204 (1962).

13. Warth v. Seldin, 422 U.S. 490, 498 (1975).

14. Scalia, supra note 8, at 881.

15. Fletcher, supra note 11, at 252.

16. U.S. CONST. art. III, § 2, cl. 1.

17. Association of Data Processing Orgs. v. Camp, 397 U.S. 150, 152 (1970).

18. Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976).

19. 454 U.S. 464, 472 (1982) [hereafter Valley Forge].

20. Id. at 474-75 (citations omitted).

21. FW/PBS, Inc. v. City of Dallas, 110 S. Ct. 596, 608 (1990); Bender v. Williamsport Area School Dist., 475 U.S. 534, 547 (1986).

22. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); The Wilderness Soc'y v. Griles, 824 F.2d 4, 16, 17 ELR 21117, 21123 (D.C. Cir. 1987); NRDC v. Burford, 716 F. Supp. 632, 634-35, 19 ELR 20740, 20741 (D.C. Cir. 1988).

23. 20 ELR at 20965.

24. 422 U.S. 490 (1975).

25. Id. at 501.

26. SCRAP, 412 U.S. at 690 n.14. Although this language appeared in a Supreme Court opinion only once, in a footnote, it has been frequently cited in support of minimal showings of injury. Fletcher, supra note 11, at 222, notes that the Supreme Court has repeatedly emphasized that more than an identifiable trifle is required for standing.

27. Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 77-78 (1978).

28. Id.

29. Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967); APA, 5 U.S.C. § 704, ELR STAT. APA 007.

30. 20 ELR at 20967-68.

31. 387 U.S. 136 (1967).

32. Id. at 149, 152.

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

34. 688 F.2d 1263 (9th Cir. 1982).

35. See, e.g., Warth v. Seldin, 422 U.S. at 499.

36. Fletcher, supra note 11, at 251.

37. Scalia, supra note 8, at 886 n.9.

38. 454 U.S. at 475.

39. Id. at 474-75.

40. 20 ELR at 20966-67.

41. 479 U.S. 388 (1987).

42. Id. at 395.

43. Id. at 399.

44. 840 F.2d 45 (D.C. Cir. 1988).

45. Id. at 60.

46. 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); Fletcher, supra note 11, at 253.

47. See, e.g., Endangered Species Act, § 11(g), 16 U.S.C. § 1540(g), ELR STAT. ESA 023; Clean Air Act, § 304, 42 U.S.C. § 7604, ELR STAT. CAA 043; Federal Water Pollution Control Act, § 505, 33 U.S.C. § 1365, ELR STAT. FWPCA 003-065.

48. 33 U.S.C. § 1365(g); see Middlesex County Sewerage Comm'n v. National Sea Clammers, 453 U.S. 1, 16 (1989).

49. 5 U.S.C. § 702.

50. 20 ELR at 20965.

51. Justice Scalia wrote that in Data Processing v. Camp the Supreme Court misinterpreted the "within the meaning of a relevant statute" standard of the APA. The Court transformed what Congress intended to be a statutory provision authorizing standing into a vague requirement that a plaintiff be a person within the group that the statute seeks to protect. According to Justice Scalia, Congress did not intend to designate the entire population as a "minority" authorized to challenge agency action. Scalia, supra note 8, at 888-89.

52. Association of Data Processing Orgs. v. Camp, 397 U.S. 150 (1970).

53. 42 U.S.C. §§ 4321-4307(a), ELR STAT. NEPA 003-014.

54. 30 U.S.C. §§ 21-42.

55. 405 U.S. 727 (1972).

56. Id. at 734.

57. Id. at 737.

58. 824 F.2d 4, 17 ELR 21117 (D.C. Cir. 1987).

59. 716 F. Supp. 632, 19 ELR 20740 (D.D.C. 1988).

60. No. CV 88-197-M-CCL (D. Mont. July 8, 1990).

61. In all these cases, the courts found that plaintiffs failed to demonstrate injury with sufficient specificity to support standing. In The Wilderness Soc'y v. Griles, 824 F.2d at 12, 17 ELR at 21120-21, the court held that where the alleged injury involves use of land, a plaintiff must specify that the land that it uses will be affected by the challenged action. In NRDC v. Burford, 716 F. Supp. at 636-38, 19 ELR at 20742, the court held that plaintiffs failed to show that regulations governing the leasing and mining of federal coal actually affected them. In Mumma, slip op. at 5-6, the court ruled that the injury to plaintiffs' recreational use of roadless areas of a national forest from the adoption of a forest plan allocating those areas to development was too remote and speculative to support standing.

62. 432 U.S. 333, 343 (1977).

63. 477 U.S. 274 (1988).

64. 43 U.S.C. § 1701, ELR STAT. FLPMA 003.

65. Id. at § 1717(a), ELR STAT. FLPMA 006.

66. Id. at § 1712(d), ELR STAT. FLPMA 007.

67. Id. at §§ 1701(a)(3), 1714 (l), ELR STAT. FLPMA 003, 010-011.

68. NWF v. Burford, 835 F.2d 305, 309 (D.C. Cir. 1987); BLM Organic Act Directive No. 81-11, June 18, 1981.

69. Burford, 835 F.2d at 309; Brief for Respondent NWF to Supreme Court at 4-5.

70. Id.

71. Id.

72. NWF's Complaint, NWF v. Burford, 676 F. Supp. 271 (D.D.C. 1985) (No. 85-2238).

73. Id.

74. Exhibit A to NWF Complaint, NWF v. Burford, 676 F. Supp. 271; Joint Appendix to Supreme Court Briefs, 25-50.

75. NWF v. Burford, 676 F. Supp. 271.

76. NWF v. Burford, 835 F.2d 305, 310 (D.C. Cir. 1987).

77. NWF v. Lujan, 20 ELR at 20966.

78. NWF v. Burford, 844 F.2d 889 (D.C. Cir. 1988).

79. NWF v. Burford, 699 F. Supp. 327, 331 (D.C.C. 1988).

80. NWF v. Burford, 878 F.2d 422, 433 (D.C. Cir. 1989).

81. Id. at 432.

82. U.S. Dep't of the Interior, Petition for Certiorari, NWF v. Lujan, No. 89-640 (Oct. 18, 1989).

83. NWF v. Lujan, 20 ELR at 20966-67.

84. Id. at 20965.

85. Id.

86. Id. at 20966.

87. Id.

88. Id. at 20967.

89. Id.

90. Id. at 20965.

91. Id. at 20968.

92. Scalia, supra note 8, 881.

93. Murchison, On Ripeness and "Pragmatism" in Administrative Law, 41 ADMIN. L. REV. 2, 162 (1989).

94. Id. at 160.

95. Scalia, supra note 8, at 897-99.

96. Scalia, Oversight and Review of Agency Decisionmaking, 28 ADMIN. L. REV. 659, 686 (1976). For a contrasting view of the doctrine, see Hutton, The Unique Perspective of Justice White: Separation of Powers, Standing and Section 1983 Cases, 40 ADMIN. L. REV. 377 (1988).

97. 5 U.S. (1 Cranch) 137 (1803).

98. Id. at 170.

99. Scalia, supra note 8, at 894.

100. Id. at 893.

101. Id. at 894-95.

102. Id. at 894.

103. 449 F.2d 1109 (D.C. Cir. 1971).

104. Scalia, supra note 8, at 884.

105. 449 F.2d at 1111.

106. 5 U.S. (1 Cranch) 137 (1803).

107. Scalia, supra note 8, at 897.

108. Block v. Community Nutrition Inst., 698 F.2d 1239, 1256 (D.C. Cir. 1983) (Scalia, J., concurring in part, dissenting in part).

109. 20 ELR at 20967.

110. Id. at 20968.

111. 30 U.S.C. § 22.

112. 43 C.F.R. §§ 3809.0-6, .2.

113. NWF v. Lujan, 20 ELR at 20967 n.3.

114. See, e.g., Letter from Oregon State Director D. Dean Bibles to Richard A. Parrish, June 13, 1990 ("Although federal regulations require that BLM review mining operations on federal lands, BLM is required to approve them as long as such activities will not cause unnecessary or undue degradation."); Letter from Ralph Haft, Malheur Resource Area Manager, Oregon BLM, to Gary Brown, Concerned Citizens for Responsible Mining, July 6, 1990 ("In sum, mining activities on public lands governed by the Mining Law of 1872 are regulated to prevent unnecessary or undue degradation of the land, but exploration and mining CANNOT be denied.") (emphasis in original).

115. Affidavit of Frank Edwards, quoted in NWF v. Lujan, 58 U.S.L.W. at 5083 n.3.

116. 717 F.2d 1409 (D.C. Cir. 1983).

117. 42 U.S.C. § 4332(C)(v).

118. The author of this Article represented the Sierra Club in Sierra Club v. Peterson, and argued the case before the court of appeals. Justice, then Judge, Scalia focused his questioning on this issue.

119. Sierra Club v. Peterson, 717 F.2d at 1413.

120. 30 U.S.C. § 22; 43 C.F.R. § 3809.0-6. The possible exception is endangered species under the Endangered Species Act, 16 U.S.C. §§ 1531-1543, ELR STAT. ESA 002-027 (1973).

121. No. 89-35577 (9th Cir. May 9, 1990). For the history of Shiny Rock, see Shiny Rock Mining Corp. v. United States, 825 F.2d 216 (9th Cir. 1987); see also Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988).

122. Shiny Rock, slip op. at 6564.

123. Tom Lustig of NWF identified this "silver lining" in a discussion of the Supreme Court's opinion with the author and other public land lawyers.

124. Scalia, supra note 8, at 897-99.

125. See supra notes 7 & 61 and accompanying text.

126. See, e.g., Tribe, Ways Not to Think About Plastic Trees, in WHEN VALUES CONFLICT — ESSAYS ON ENVIRONMENTAL ANALYSIS, DISCOURSE, AND DECISION 83-84 (1976).