Drafting Standing Affidavits After Defenders: In the Court's Own Words

James M. McElfish Jr.

Editors' Summary: The U.S. Supreme Court's recent decision in Lujan v. Defenders of Wildlife, raises the threshold requirements that an environmental plaintiff must meet to establish its standing to sue. Although the decision will not fundamentally alter who brings environmental issues before the courts, the decision may herald an era in which pleading formalism and proof of each standing element are required. Proof offered to support standing will have to satisfy the Court's interpretation in Defenders of the standing requirements. In this Article, the author asserts that despite the heightened scrutiny of standing in Defenders, the Supreme Court's own language provides instruction for the drafter of standing affidavits. The author examines the Court's language in Defenders as it applies to the standing requirements, and provides a sample standing affidavit that complies with this language.

Mr. McElfish is a Senior Attorney at the Environmental Law Institute.

[23 ELR 10026]

The Supreme Court's recent decision in Lujan v. Defenders of Wildlife,¹ makes it more important than ever for counsel representing an environmental plaintiff to assure that their clients can meet increasingly stringent standards for standing. The Court's view of standing necessitates "code" pleading and proof of each element of standing. Each affidavit proffered in support of standing must, consequently, meet a meticulous checklist of requirements.

Fortunately, the Court has made the draftsmanship fairly straightforward by making its pronouncements in reproducible bits of prose. Just as pleadings form books follow the language of the codes, and form jury instructions follow instructions given in those cases sustained on appeal, so too, this brief guide to drafting standing affidavits follows the Court's own language.

Standing Elements

In Defenders, the Supreme Court stated that "the irreducible constitutional minimum of standing contains three elements":

(1) the plaintiff must have suffered an "injury-in-fact — an invasion of a legally protected interest which is (a) concrete and particularized, … and (b) actual or imminent,"

(2) the injury must be "fairly traceable to the challenged action of the defendant," and

(3) "it must be likely, as opposed to merely speculative that the injury will be redressed by a favorable decision."²

Each factual affidavit offered in support of plaintiff's standing must contain these elements.

Also relevant to the standing inquiry are statutory and prudential limitations. One such limitation is the requirement that the plaintiff's interest be within the "'zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for [the] complaint."³ This "guide for deciding whether … a particular plaintiff should be heard to complain of a particular agency decision"⁴ is the counterpart of the constitutionally based "injury-in-fact" test.

Drafting the Affidavit

Injury in Fact

The allegation in the complaint that an injury is both concrete and particularized, and actual or imminent, must be supported in the affidavit by facts showing that the affiant is "directly affected."⁵ In Defenders, the Court assumed for the sake of argument that the affidavits submitted by [23 ELR 10027] the plaintiff's members established the likely threat to the endangered Asian elephant and the Nile crocodile, but nevertheless held that the affiants themselves were not "directly affected." According to the Court, a legally cognizable injury occurs only when the affiants' opportunity to study the species arrives, or is about to arrive, but the species no longer exists at that location.⁶ Otherwise, the affiant could avoid being injured by simply not returning to the site, or by turning his or her interest to another subject. Consequently, the alleged injury is not "actual," and, absent "concrete plans" to return, is not "imminent" either.⁷ The concept of imminence is

stretched beyond the breaking point when … the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff's own control. In such circumstances we have insisted that the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all.⁸

Similarly, geographical proximity is required in order to satisfy the concreteness and particularity requirements. In Defenders, the Court noted that a keeper of Asian elephants in the Bronx Zoo would have no standing to contest the demise of elephants elsewhere. It described as "the outermost limit of plausibility" that a person who works with a particular species in the "very area" of the world where the members of that species are threatened with destruction might have standing.⁹ Thus, great precision is required. Environmental injury to a parcel of land is not recognized as a concrete and particularized harm to an individual unless it is the precise parcel that that individual intends to use for lawful purposes. The legal standard of concreteness and particularity "is assuredly not satisfied by averments which state only that one of [the affiants] uses unspecified portions of an immense tract of territory, on some portions of which [a harmful] activity has occurred or probably will occur by virtue of the governmental action."¹⁰

Therefore, plaintiff's counsel must establish "concreteness" at a place certain and "actuality" or "imminence" at a time certain. To satisfy the Court's majority in Defenders, affidavits must give "concrete plans"¹¹ to return to, observe, collect, and/or recreate at a specific place and time where the injury will be suffered.

Although joining in Justice Scalia's opinion for the majority in Defenders as to "injury in fact," Justices Kennedy and Souter's concurring opinion suggests that the specific acts of acquiring airline tickets to visit, or announcing a "date certain" for return to a site of injury may not be necessary "where it is reasonable to assume that the affiants will be using the sites on a regular basis," or where the affiants "have visited the sites since the [acts complained of] commenced."¹² The justices who joined Justice Scalia's opinion in its entirety — Chief Justice Rehnquist and Justices White and Thomas — may or may not recognize such a distinction. Accordingly, the prudent drafter of affidavits will plan to cover both eventualities where it is possible to do so.

* Special Issue: Establishing "Procedural" Injury in Fact. One type of injury in fact specifically discussed in Defenders is likely to arise in other environmental cases — the claim that one of the injuries to the plaintiff was the government's failure to follow the procedures prescribed for its actions. In Defenders, the Court substantially eliminated this as an independent basis for standing. The Court rejected the plaintiff's claims that it and its members had suffered injury in fact by the government's failure to follow its own procedures.

The Court held that mere failure to follow a legally mandated procedure is not a particularized injury, unless it impairs a "separate concrete interest" of the plaintiff's.¹³ The Court gave as examples of such a concrete injury the denial of a license to an applicant — an economic injury — or the failure to prepare an environmental impact statement for a federal facility "next door" to a plaintiff — an economic or aesthetic injury.¹⁴ Essentially, the Court's opinion implies that the failure to follow a procedure prescribed by law is only an injury in fact when it results in the equivalent of a breach of contract or a tort.

The Court further suggested that it is beyond Congress' constitutional power to confer such standing:

To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an "individual right" vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed." Art. II, § 3.¹⁵

However, such a "vindicable interest" might be found to exist, said the Court, in the "unusual case" in which a concrete, private pecuniary interest has been created by Congress' enactment of a "cash bounty" provision for a victorious plaintiff who represents the government's interest against a private party.¹⁶

Given the majority opinion, it would appear that allega- [MISSING PAGE]

[23 ELR 10029]

and Thomas.²⁹ The plurality opined that even if the district court had granted the requested relief — ordering government agencies to consult under the ESA — the action agencies, who were not parties to the litigation, could have ignored the Secretary of Interior's advice and proceeded nonetheless to take endangered species: "The short of the matter is that redress of the only injury-in-fact [plaintiffs] complain of requires action … by the individual funding agencies; and any relief the District Court could have provided in this suit against the Secretary was not likely to produce that action."³⁰ The plurality also emphasized that even if the nonparty federal agencies had fully complied, the plaintiff had "produced nothing" to indicate that the foreign development projects in which the agencies were involved would not have been completed by foreign governments without U.S. assistance, resulting in a taking of endangered species.³¹

Thus, the clear implication of the plurality opinion is that the plaintiff must present evidence in its affidavits to show that the most "likely" chain of events is that an action taken by the defendant pursuant to a court order will alter the behavior of third parties. Affidavits supporting "redressability" should show how the "likely" course of events is that the third-party actors will modify their conduct following a court order acting on the defendant. Alternatively, the affidavit could show how an order to the defendant will allow the affiant to avoid the injury. The latter approach makes the redress dependent only on the action of the defendant and not on any third parties. For example, if the requested relief includes information that enables the affiant to avoid the area in question during the objectionable activities, such as pesticide spraying, the actions of third parties will drop out of the chain of redress.

Sample Affidavit

The following is a sample form using the terms set out by the Supreme Court to satisfy the requirements for environmental standing.

1. I, [name], am a member of [organization], a plaintiff in this case. I have been a member since [date]. The organization represents my interests and those of others like me who use the [lands and waters in question].

2. I am directly affected by [the action at issue]. I am a regular user of the [lands and waters in question]. [Describe uses and link(s) to parcels.] I have concrete plans to return to the [site] on [specific dates], and [general dates] thereafter. The defendant's action will produce [described adverse effects] as early as [dates]. This is an actual and imminent injury to me. [Explain.]

And/or:

2. I am directly affected by [the action at issue]. [I live at the ]specific site[] or [I have visited ]the specific site[ since the effects of ]the action complained of[ have begun to occur or (per theconcurrence) I will be using ]the specific site[ on a regular basis in connection with ]a specific activity[.] The defendant's action [will or has produced described adverse effects] as early as [dates]. This is an actual and imminent injury to me. [Explain.]

3. My interest is within the zone of interests protected by [the statute at issue]. [Explain.]

4. I have suffered a procedural injury because [the government's failure to follow procedures] has impaired a distinct and concrete interest of mine as follows [explain the separate interest].

5. I have also suffered a procedural injury because the [procedures at issue] were expressly enacted [or promulgated] to protect me and persons like me by providing [explain procedures and their relevance].

6. I have [or the organization has, if this is an affidavit by an officer of the organization] suffered a distinct and concrete injury to my [its] informational rights under [the statute at issue]. The injury from the denial of this information is demonstrated by the following specific facts. [Enumerate.] Providing information to me [or the organization and its members] was one of the objectives of [the statute at issue].

7. The injury to my [or the organization's] interests is fairly traceable to the action at issue. [Describe chain of causation.] Because of these actions by the defendant, I [or the organization] [have been or will be] adversely affected by [set forth injury].

And/or:

7. The injury to my [or the oganization's] interests is fairly traceable to the action at issue. Because of the defendant's action, [describe actions that] have been or will be taken by [describe identified third-party actors, if any] in such manner as to cause the following injuries to me [or the organization]. [Set forth the injuries.]

8. The injury to my [or the organization's] interests is redressable by this Court. An order against the defendant will provide complete relief in that [explain how compliance by the defendant's redresses injury].

And/or:

8. The injury to my [or the organization's] interests is redressable by this Court. An order against the defendant will cause [third-party actors to modify their conduct] by [explain], thus eliminating the injury.³²

And:

[23 ELR 10030]

8a. The injury to my [or the organization's] interests is redressable by this Court. An order against the defendant will cause them to [explain resulting action]. Such action by the defendant will, at a minimum, allow me [or the organization] to take action [describe action] to protect my [or the organization's] own interests.³³

Conclusion

While standing is a highly fact-dependent legal issue, its pleading and proof can be systematized. The sine qua non of standing — careful selection of affiants — must be complemented by equally careful draftsmanship. The form suggested above provides a checklist of key issues and Court-favored language. It will, of course, require substantial modification in the individual case.

Litigators for an environmental plaintiff will need to be attentive to the acutely sharpened requirements of recent case law. Today, standing is a central, contested issue — ripe for discovery, depositions, motions practice, and all of the other accoutrements that once characterized only the legal issues raised by the merits of the case.³⁴

Once again, the Court's own words serve as the best reminder of this. The elements of standing "are not mere pleading requirements but rather an indispensable part of the plaintiff's case … [which] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof…."³⁵

1. 112 S. Ct. 2130, 22 ELR 20913 (1992).

2. Id. at 2136, 22 ELR at 20915 (citations and internal quotation marks omitted).

3. Lujan v. National Wildlife Fed'n, 110 S. Ct. 3177, 3186, 20 ELR 20962, 20965 (1990).

4. Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 399 (1986).

5. Defenders, 112 S. Ct. at 2138, 22 ELR at 20916.

6. Id. at 2139-40, 22 ELR at 20917.

7. Previous visits to the places in question "proves nothing," and a mere intent to return is "simply not enough." Id. at 2138, 22 ELR at 20916.

8. Id. at 2139, n.2, 22 ELR at 20916 n.2 (citation omitted). The majority did note, however, that there might be some flexibility in the "immediacy" requirement where the right to be vindicated is a procedural right granted by statute to protect a "concrete" interest. 'Thus," said the Court, "one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an Environmental Impact Statement … even though the dam will not be completed for many years." Id. at 2142-43 n.7, 22 ELR at 20918 n.7.

9. Id. at 2139-40, 22 ELR at 20917.

10. Lujan, 110 S. Ct. 3177, 3189, 20 ELR 20962, 20966 (1990). See also Defenders, 112 S. Ct. at 2139, 22 ELR at 20917 (no rights of action in persons using "portions of an ecosystem not perceptibly affected by the unlawful action in question").

11. Defenders, 112 S. Ct. at 2138, 22 ELR at 20916.

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

13. Id. at 2142, 22 ELR at 20918.

14. Id., 22 ELR at 20918.

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

16. Id. at 2143, 22 ELR at 20918. Presumably, this would not include environmental citizen suits, in which there are no such bounties, although an argument might be ventured based on the potential recovery of attorneys fees. Another facially plausible basis may be the discretionary bounty payable by EPA under § 113(f) of the 1990 Clean Air Act Amendments for "any person who furnishes information or services which lead to a … civil penalty for any violation." 42 U.S.C. § 7413(f), ELR STAT. CAA 51 (1990).

29. Redressability was not reached by concurring Justices Kennedy and Souter. Justice Stevens, Defenders, 112 S. Ct. at 2147, 22 ELR at 20921 (Stevens, J., concurring), and Justices Blackmun and O'Connor would have found the injuries redressable. Id. at 2157, 22 ELR at 20926 (Blackmun, J., dissenting).

30. Id. at 2142, 22 ELR at 20918.

31. Id., 22 ELR at 20918.

32. For example: "If valid existing rights are redefined as required by the statute, mining of the ABC parcel is unlikely to occur. ABC Mining Company will be unable to meet the new standard." Or, "if the lease sale is reformulated to conform to the requirements of law, it is likely that there will be fewer bidders or no bidders, because the remaining parcels have poorer geologic potential. Consequently, even if leasing proceeds, the area is less likely to be comprehensively drilled, and the land will be less degraded by roads, pits, and other impacts associated with the proposed action."

33. For example, "to protect my own interest by avoiding the site while pesticide spraying is ongoing." Or, "to protect my own interest by taking action before a release of air pollutants pursuant to a minor permit modification by taking expensive allergy medicines."

34. An unfortunate preview of what may become typical practice, given the state of standing after Defenders, is provided by the D.C. Circuit's pre-Defenders parsing of the contents of 70 affidavits comprising over 1,600 pages submitted by environmental groups to sustain their standing in a multi-issue challenge to surface coal mining regulations. Hodel, 839 F.2d 694, 701-16, 18 ELR 20646, 20648-57 (D.C. Cir. 1988).

35. Defenders, 112 S. Ct. at 2136, 22 ELR at 20915.