More on Standing: The Supreme Court's Latest Word, The Tenth Circuit's Last Stand

The decision of the Supreme Court last year in Sierra Club v. Morton¹ generated fears that the recent acceptance of broadened standing in environmental cases might be reversed. In its June 18th decision in United States v. SCRAP, the Court resolved some of the ambiguity inherent in Sierra Club v. Morton in favor of the trend towards liberalized standing requirements. The same day, however, the Tenth Circuit handed down a surprising decision in Natural Resources Defense Council v. Environmental Protection Agency² which may serve as a reminder to environmental lawyers that standing must still be treated with some care in pleadings. For standing in another recent case, see the Comment in this issue on Scientists' Institute for Public Information v. Atomic Energy Comm.

United States v. Students Challenging Regulatory Procedures

In this case, five law students organized as Students Challenging Regulatory Procedures (SCRAP) attacked a 2.5 percent temporary rate surcharge that the ICC had permitted railroads to charge for the shipment of recyclable goods. Along with other environmental groups, SCRAP asserted that the increased rates on scrap aggravated an already existing adverse rate differential between virgin and raw materials that biased the market toward the purchase of raw materials, with consequent adverse effects on the environment. A three-judge federal district court found that the Commission's refusal to suspend the proposed surcharge was "major federal action" under NEPA and that an environmental impact statement was therefore required before such a decision could be made. The district court issued a preliminary injunction prohibiting the ICC from permitting the surcharge and the railroads from collecting it. The United States, the ICC and the Aberdeen & Rockfish Railroad appealed this decision to the Supreme Court.

Appellants challenged plaintiffs' standing under the rationale of Sierra Club v. Morton. The Court, with three dissents, found that the environmental groups had alleged sufficient facts to show they were "aggrieved" under § 10 of the Administrative Procedure Act.Sierra Club v. Morton, relying on earlier decisions construing § 10 of the APA, required a showing that injury in fact had been suffered by the plaintiffs. The Court here decided that plaintiffs fulfilled this requirement by alleging that their members used and enjoyed the natural resources of the Washton, D.C. area and that this use and enjoyment would be diminished by the adverse environmental affects of the surcharge. The opinion reiterated the principle that aesthetic and environmental well-being as well as economic well-being are important values susceptible of protection through the courts.

The Court recognized that the environmental effects alleged in this case, involving substantially all American railroads, would have an impact on all the natural resources of the country, and could thereby harm almost everyone. That everyone in the nation might have standing did not mean, however, that those before the court were any less harmed:

To deny standing to persons who are in fact injured simply because many others are injured, would mean that the most injurious and wide-spread Government actions could be questioned by nobody.

Besides alleging that he will suffer "injury in fact," plaintiff must also show a "logical nexus" between his injury and the outcome of the litigation he is pursuing.³ Earlier this term the Court had denied standing to a woman seeking the criminal prosecution of her child's father for non-support because she had failed to establish this necessary connection.⁴ To connect plaintiff's loss of use and [3 ELR 10097] enjoyment of natural resources with the Commission's failure to file an environmental impact statement before deciding not to suspend the temporary surcharge, the Court was required to follow "an attenuated line of causation." Its willingness to do so, severly critized in Justice White's dissenting opinion, shows an understanding of the linkages involved in environmental damage which bodes well for environmental suits raising issues broader than the defense of a particular resource directly threatened with harm, as was the case with Mineral King Valley in Sierra Club v. Morton.

After allowing plaintiffs standing to sue, the Court proceeded to deny them the relief they sought. It held that § 15 (7) of the Interstate Commerce Act specifically grants the ICC exclusive jurisdiction over whether to allow a rate surcharge pending final determination on the lawfulness of the increase. Decisions under this section are not subject to judicial review, the Court held, and the subsequent passage of NEPA cannot be taken to change this rule.

This case was reversed and remanded to the district court for further proceedings. In the meantime, the ICC decided to approve a final rate increase, after having filed an environmental impact statement finding that no significant adverse effect on the environment would result from the rate increase. This decision was appealed to a three-judge district court which granted plaintiffs a temporary restraining order against the increase. Justice Burger stayed the order and the Suporeme Court en banc upheld him.⁵ Since the June 18th decision of the Supreme Court deals only with the district court's power to enjoin a rate increase at the suspension stage, the district court still must decide whether it may enjoin the final rate increases and whether the environmental impact statement filed by the ICC is adequate.

Natural Resources Defense Council v. Environmental Protection Agency

NRDC v. EPA is one of many cases filed by NRDC in the circuit courts under § 307 of the Clean Air Act challenging EPA's approval of various state implementation plans. The Tenth Circuit's decision is the first to deny petitioners standing, although the petition to review was practically identical in all the suits. The First and D.C. Circuit Courts reached decisions on the merits in the cases without discussing standing at all.⁶

The opinion by Judge Breitenstein indicates uneasiness over the concept of citizen suits in environmental cases in which environmental groups act as private attorneys general:

Unrestricted litigation by private persons to assert their own ideologies under a claim of public interest presents the potential of hazardous consequences to our constitutional system based as it is on the concept of separation of powers. The statute before us [§ 307] is a blanket invitation to all the world to petition a court of appeals for review of administrative action. The latest effects have alarming possibilities.

This is the first opinion to deal with the standing requirements of § 307. The leading Supreme Court cases on standing in the context of administrative review have all dealt with § 10 of the APA and the meaning of "legal wrong" or person "adversely affected or aggrieved." This court finds that § 307 does not limit standing in any way, so that the court itself must alone determine the issue under the "case and controversy" provision of Article III of the Constitution.

The court quite properly asserts that standing involves a threshold question of constitutionality under Article III. The Supreme Court dealt with this issue in Flast v. Cohen when it allowed taxpayer challenges to federal statutes on first amendment grounds. The Court held that the constitutional limit on federal court jurisdiction found in Article III relates to standing only in requiring that "the dispute sought to be adjudicated with be presented in an adversary context and in a form historically viewed as capable of judicial resolution."⁷ For this reason the party invoking federal jurisdiction must have "a personal stake in the outcome of the decision."⁸ The article III requirement has been summarized as the need for plaintiff to show he has suffered "injury in fact" by reason of the action complained of.⁹ The Clean Air Act established procedures for setting standards on maximum acceptable levels of air pollution. It would seem that anyone forced to breathe air which is polluted in excess of those standards has suffered the constitutionality required injury. The SCRAP case forecloses the argument that more particularized injury is required.

When review of administrative action is sought in a dispute justiciable under Article III, the court must inquire whether the statute under which the agency operates authorizes review at the behest of the plaintiff. Section 307 of the Clean Air Act, written entirely in the passive voice, contains no language describing who may petition for review. The Tenth Circuit, comparing this absence of descriptive language with the detailed provisions for citizens suits in § 304, concluded that either Congress intended the standing requirement to be much stricter in § 307 than § 304, or that it wished to leave room for the exercise of judicial restraint. This interpretation, besides ignoring the words of the statute, fails to take into account that § 307 is part of a revision of the Clean Air Act intended to encourage citizen enforcement of its provisions. The court does not cite the legislative history of this section which refers with approval to the increasing tendency of [3 ELR 10098] courts to grant standing for review of administratively developed standards and regulations to those who seek "to protect the public interest in the proper administration of a regulatory system enacted for their benefit. The report of the Senate Committee specifically provides for such broad review for § 307.¹⁰ The Tenth Circuit's "rule of self-restraint" could only be invoked if Congress had not already resolved the question one way or the other. The intent of Congress in the Clean Air Act was clearly to encourage review. The concept of judicial restraint put forward by this decision does not square with modern standing decisions. "There is no presumption against judicial review and in favour of administrative absolutism (see Abbott Laboratories v. Gardner, 387 U.S. 136, 140)."¹¹ "Indeed judicial review of such administration action is the rule, and nonreviewability an exception which must be demonstrated.¹² Looking at the Act with this in mind, it is clear that § 307 leaves no room for the exercise of judicial discretion to deny review.

The circuit court also finds that petitioners apparently are not within the zone of interest protected by the Clean Air Act. Yet petitioners are attempting by this appeal to enforce higth standards of pollution control, an aim certainly within the zone of interests created by the Clean Air Act. Furthermore, it is arguable that the zone of interest test developed in Data Processing and Barlow is not an article III requirement, but flows from § 10 of the APA which requires the party to be "aggrieved by agency action within the meaning of the relevant statute" (emphasis added). Such language not being part of § 307, the zone of interest test would not be applicable to this case.

In the final analysis, the outcome of this case may well have swung upon a question of pleading. The constitutional issues raised by the court have for the most part been laid to rest, as the SCRAP case indicates. Section 307 may be broad enough to permit what the court terms the "New York subway rider" to challenge the implementation plans of New Mexico, but the petitioners here were certainly not taking so radical a position. All of the petitioners were in fact residents, or had members resident, in the state whose plan was under attack. What disturbed the Tenth Circuit was the complete lack of allegations of fact to support the petitioners' claim of interest in the case. None of the papers filed in the case contained any description of the parties seeking review because the Federal Rules of Appellate Procedure provide no method of alleging facts about the parties in a petition to review. Petitioners, following normal procedure for the D.C. Circuit which handles most agency appeals, treated the matter as an ordinary appeal, the factual basis for which being found in the record produced at the agency level. Since, however, the agency action appealed from was in the nature of a rule-making procedure, there were no "parties" at the agency level, and therefore no factual groundwork for petitioners' intervention was ever laid. Furthermore, even if a complete description of the petitioners was to be found in the agency record, it is by no means clear that the same standard of interest that would allow a party to intervene in an administrative proceeding would suffice to give him standing in court.

When the court indicated an interest in petitioners' basis for standing, they attempted to provide the missing factual findings by means of a stipulation of facts, but this unfortunately did not reach the court in time. A hiatus in pleading procedures apparently exists whereby no provision for alleging facts about the parties to an agency appeal has been created, but it would be wise in the future for petitioners under the Clean Air Act and similar statutes creating direct circuit court review, to include information as to the interest of the parties and the injury suffered by them in the petition to review or in the supporting brief, despite the failure of the Federal Rules to provide for such allegations.

NRDC has filed a petition for rehearing, a motion to alter the judgment, and a motion to amend the pleadings. With the Supreme Court's ruling in U.S. v. SCRAP to buttress them, the Tenth Circuit will hopefully allow petitioners to fulfill the technical prerequisites to review so that a decision on the merits may be reached.

1. 405 U.S. 727, 2 ELR 20192 (1972); see also, Comment, Supreme Court Decides Mineral King Case: Sierra Club v. Morton, 2 ELR 10034 (April 1972); Comment, Recent Cases on Standing, 2 ELR 10194 (Sept. 1972).

2. United States v. SCRAP, 3 ELR 20536 (U.S. June 18, 1973), rev'g SCRAP v. U.S., 346 F. Supp. 189, 2 ELR 20486 (D.D.C. 1972); NRDC v. EPA, 3 ELR 20579 (10th Cir. June 18, 1973).

3. Flast v. Cohen, 392 U.S. 83, 102 (1968)

4. Linda R.S. v. Richard D. 41 USLW 4371 (U.S. March 5, 1973).

5. See SCRAP v. U.S., 3 ELR 20535 (D.D.C. June 7, 1973).

6. NRDC v. EPA, 3 ELR 20155 (D.C. Cir. Jan. 31, 1973); NRDC v. EPA, 3 ELR 20375 (1st Cir. May 2, 1973).

7. Flast v. Cohen, 392 U.S. 83, 101 (1968)

8. Baker v. Carr, 369 U.S. 186, 204 (1962).

9. Data Processing v. Camp, 397 U.S. 150 (1969); Barlow v. Collins, 397 U.S. 159 (1969); see especially Justice Brennan's opinion concurring in the result and dissenting in these cases.

10. EDF v. Hardin, 428 F.2d 1093 (D.C. Cir. 1970) cited in U.S. Senate Committee on Public Works, Report on S.4358, Senate Report No. 91-1196, 91st Cong., 2d sess. (1970), at 41. Section 307 is referred to in the Report by the former section number 308.

11. See Data Processing v. Camp, 397 U.S. 150, 157 (1969).

12. Barlow v. Collins, 397 U.S. 159, 166 (1969).