"Who do you think you are?" Tales from the trenches of the environmental standing battle.

   Mr. Van Tuyn identifies as a significant trend in environmental law the
   increasing tendency of federal judges to dismiss proenvironment lawsuits
   for lack of standing. The trend has been facilitated by United States
   Supreme Court Justice Antonin Scalia, who urged in a 1983 law review
   article a stricter application of the standing doctrine for environmental
   plaintiff and who has applied this strict test in several Supreme Court
   cases. The private defense bar and Department of Justice have followed
   suit, Mr. Van Tuyn argues, raising standing as a defense in improbable
   circumstances without regard to the practical results of their position,
   including the greatly increased costs of litigating cases in the public
   interest.

"How dare you complain!"

"Just who do you think you are?"

With increasing frequency over the last twenty-five years, federal courts have been driving away environmentalists with decisions that ring like mockery in the ears of the dispatched plaintiffs. This disturbing trend originated with conservative members of the federal judiciary who are prevented by the constitutional principle of separation of powers from changing the underlying environmental laws that appear to cause them so much grief. Instead, they twist other constitutional principles in order to prevent ordinary citizens from even entering the courthouse. Championed by United States Supreme Court Justice Antonin Scalia, this trend can wreak significant damage on the environment and alienate people from the judicial system.

Within our three-branch system of government, the authority of one branch is checked by that of the others.(1) Thus, Congress can enact legislation, but cannot implement it(2); that is the task of the executive branch.(3) The judiciary, in turn, is charged with ensuring that the executive branch implements the laws consistently with Congress's intent and with the United States Constitution.(4)

Ingrained within the separation of powers doctrine lies the concept that the judiciary must limit its review to actual "cases or controversies."(5) As courts have long held, the Framers of the Constitution inserted the "case or controversy" requirement in order to allow plaintiffs standing to bring a lawsuit only when they have a stake in a real dispute.(6) This is a common sense requirement. The courts are not academic institutions or think tanks established to anticipate legal disputes or to consider generalized grievances with no specific impact. Rather, issues are best resolved when real people are so injured and upset by the conduct of others that they will vigorously pursue all legal options for relief. The case or controversy requirement ensures that lawsuits are heard only if the parties are true adversaries, because only true adversaries will aggressively present to the courts all issues that support their position.(7) The courts are then in the best possible position to discern the truth, whether it be predicated upon a question of law or a question of fact.

The United States Supreme Court has established a three-part test for ferreting out cases in which true adversarial positions do not exist.(8) First, a plaintiff must show a concrete and imminent injury in fact.(9) Second, the injury must be "fairly traceable" to the challenged action of the defendant.(10) Third, the court must be able to redress the injury through a favorable Decision.(11) The Court has also said that standing may be limited by judicially created "prudential" considerations, including whether a plaintiff is in the "zone of interest" of the law at issue.(12) The Court has held that Congress can modify these prudential considerations, but the initial three-part test is founded on the Constitution and thus cannot be changed solely by Congress or the courts.(13)

Justice Scalia has relentlessly pursued his desire to raise the standing bar well above its current height.(14) He pushes an interpretation of the case or controversy requirement that mandates more than the traditional application of this test.(15) At the heart of his theory on standing is the idea that courts must reject cases that go against the court's "traditional undemocratic role of protecting individuals and minorities against impositions of the majority."(16) Consequently, he believes the courts must reject cases that place them in the "undemocratic role of prescribing how the other two branches of government should function in order to serve the interest of the majority itself."(17)

Justice Scalia has been successful in pushing his agenda. Writing for the majority in three recent cases in which constitutional standing was at issue, Justice Scalia used his theory to deny standing to environmental plaintiffs in two of the cases yet to grant standing to industry plaintiffs in the third case.(18) Notably, Justice Scalia's theory appears to lower the bar for establishing standing for industrial polluters and others who are the object of government regulation, but to raise the same bar for the beneficiaries of regulation.(19) The threat to the environment posed by Justice Scalia's vision for the standing doctrine is hard to underestimate. As scholars and environmental litigators have stated,

   [t]he implications of this theory for environmental advocates are
   disastrous. According to this view, timber companies, mining firms,
   industrial manufacturers, and so on--the objects of environmental
   regulation--should routinely be granted standing to challenge regulatory
   requirements. On the other hand, environmental groups, which commonly
   complain about inadequate regulation resulting in widespread environmental
   harms, should routinely be denied standing. The upshot of this theory is a
   dramatic redefinition of the role of the federal judiciary in environmental
   disputes, to the benefit of those who are subject to (and sometimes object
   to) environmental standards, and to the detriment of those seeking to
   enforce environmental standards.(20)

This trend has not gone unnoticed by industry attorneys and the United States Department of Justice. With increasing regularity, and seemingly with no regard for the absurd results that would flow from theft positions should they prevail, these lawyers raise the standing defense in almost every case. In Alaska, three recent cases illustrate these points.

The first case concerned the use of a huge hovercraft (with a payload capacity of eight tons) by the United States Postal Service to deliver mail to communities along western Alaska's Kuskokwim River and its tributaries.(21) The communities in this part of Alaska rely heavily on the area's fish and wildlife as a basis for a subsistence culture that has existed for centuries.(22) The hovercraft, which produces a sustained sound level equivalent to a plane at takeoff power, can flush migratory birds from their riverside nests, leaving their eggs subject to abandonment and predation.(23) Area residents also reported finding dead salmon smolt in the wake of the hovercraft. Eight Alaska Native villages and the Association of Village Council Presidents brought suit to challenge the Postal Service's noncompliance with coastal zone management laws designed to protect their subsistence culture.(24) They also challenged the Postal Service's refusal to conduct a review of the environmental impacts of the hovercraft as required by Postal Service regulations and the National Environmental Policy Act.(25)

Amazingly, the Department of Justice challenged the plaintiffs' standing to bring the suit.(26) In order to make this argument they had to ignore the local people's centuries-old connection to their environment and the fact that harm to these people's subsistence resources is akin to a cultural death sentence.(27) Thankfully, the judge thought so little of their argument that he refused to even hear oral argument on it.(28)

The second case concerned a 365 million-barrel oil field development located on private and state-owned surface land located in the floodplain of an Arctic river delta.(29) The delta area is home to an incredible variety of fish and wildlife, including massive concentrations of migratory waterfowl found nowhere else in the Arctic.(30) The oil field itself would use new technology to move oil under the river, and it would connect a wild and remote portion of America's Arctic coastline to existing oil field development thirty-four miles to the east.(31) Moreover, the huge industrial drift net of the existing Alaska oil fields, which include hundreds of miles of roads, thousands of miles of pipelines, and hundreds of thousands of acres of destroyed wetlands, has never been the subject of an in-depth review for environmental impacts.(32)

Alaska-based conservation organizations and a wilderness outfitter brought a challenge to a wetlands fill permit for the project by the Corps of Engineers under the Clean Water Act,(33) alleging that the Corps had been required to prepare an in-depth environmental impact statement before it could have approved the project.(34) Industry intervenors pushed the standing issue, arguing among other things that because other people live closer to the project than the plaintiffs, the plaintiffs did not have standing.(35) The intervenors made this argument in the face of testimonial and deposition evidence from members of the plaintiff organizations that they had floated, boated, hiked, dog mushed, and flown over and through the delta throughout the last two decades.(36)

The district court kicked three of the four plaintiffs out of the case on standing grounds.(37) The court discounted one affiant's substantial travel through the area as too distant in time and appeared to reject as irrelevant her return to the area the year the litigation was filed because the trip was made "only after making her affidavit and after th[e] litigation was commenced."(38) This case, including the standing issue, is currently before the United States Court of Appeals for the Ninth Circuit.(39) As industry is well aware, a Ninth Circuit ruling upholding the district court's decision would make protection of the Arctic from those who would "drill it and fill it" increasingly difficult.

The final example concerns the use of snowmachines in the core two million wilderness acres of Denali National Park and Preserve.(40) This portion of Denali was first established as a park in 1917,(41) and snowmachines were not actually or legally used in this area throughout recorded history.(42) In 1980 Congress passed the landmark Alaska National Interest Lands Conservation Act (ANILCA).(43) As it related to snowmachine use in Denali and other conservation lands in Alaska, ANILCA provided that snowmachines could be used if they had traditionally been used in that area.(44) Faced with pressure from the snowmachine lobby, the United States Park Service issued a temporary rule that opened two corridors within this core portion of the park to snowmachine use.(45)

The first party to enter the courthouse was the snowmachine lobby. They alleged that the Park Service was arbitrary and capricious in closing the vast majority of the core area to snowmachines without area-specific evidence of harm.(46) Not surprisingly, conservationists were not wild about the temporary rule, either. Nine conservation organizations, ranging from a local group all the way up to large national groups, intervened as defendants and filed counterclaims against the Park Service. The conservationists alleged that, because snowmachines had never been used in the core area 9f the park, their use there could not be considered "traditional" within the meaning of ANILCA and thus cannot now be sanctioned in any part of the core area.(47)

The United States Department of Justice challenged the conservationists' standing to bring the counterclaims.(48) The conservation groups submitted affidavits from many of their members detailing their use of the core area throughout the years.(49) The Department of Justice's position is particularly astounding given the fact that Denali's core wilderness area is one of the crown jewels, if not the crown jewel, of America's National Park system.

In a preliminary opinion issued just before oral argument, the district court tentatively agreed with the Department of Justice.(50) The court found that the conservation organizations did not have standing because their members had not alleged that they were going to return to the specific areas of the Park where snowmachines were allowed under the temporary rule during the pendency of the temporary rule.(51) The effect of this ruling would have been to reject standing in this case unless there 'was direct interaction between snowmachines and people--wholly disregarding the impact snowmachines have to wildlife and the physical enviroument (which of course lasts long after snowmachines have left an area). In response to this preliminary ruling, the conservation organizations filed affidavits from their members clarifying that the members did, indeed, have concrete plans to visit the area open to snowmachines during the time period when snowmachines could be present.(52) In its final ruling, the court accepted this showing and found that four of the nine conservation organizations had standing to bring their claims, albeit based on a very limiting view of the standing doctrine.(53)

The widespread and continual offensive use of the standing doctrine to prevent environmentalists from raising claims in court may be a result of several factors. First, many right-wing litigators likely desire to further Justice Scalia's agenda by raising the issue in as many factual contexts as possible, with the hope that conservative federal judges will solidify Justice Scalia's views into law. Moreover, on the theory that the best defense is a good offense, litigators concerned about defending a case on the merits may stir in the standing issue with the hope that defending the case on the merits might be wholly avoided. It is also noteworthy that challenges to standing often result in lengthy depositions and voluminous briefing, both of which generate significant billable hours for private attorneys.(54)

Whatever reason compels industry and government litigators to make standing an issue in particular cases, it is a travesty of justice that standing is becoming such a significant hurdle to parties who act in the general public interest to enforce environmental laws. When successful, the new standing arguments threaten human rights and chip away at our collective right to clean air and water and a healthy and diverse environment.(55) The arguments also represent a significant trend--possibly the most disturbing one--in environmental law in the late twentieth century.(**)

(*) Peter van Tuyn is the Litigation Director of Trustees for Alaska, a nonprofit public interest environmental law firm formed in 1974 to provide legal counsel to sustain and protect Alaska's natural environment. The author has represented local and national environmental groups, Alaska Native villages and nonprofit organizations, community groups, and others on cases that would benefit Alaska's environment. Mr. Van Tuyn is a 1989 graduate of Vermont Law School, where he received a Juris Doctor and a Masters in the Study of Enviromnental Law, magna cum laude. He is also a former trial attorney with the Environment and Natural Resources Division of the United States Department of Justice and a former law clerk to Justice Allen T. Compton of the Alaska Supreme Court Mr. Van Tuyn has also served as a volunteer board director and general counsel to several conservation organizations.

(1) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).

(2) U.S. CONST. art. I, [sections] 8, cl. 18; see Bowsher v. Synar, 478 U.S. 714, 721-27 (1985).

(3) U.S. CONST. art. II, [sections] 3, cl. 4; see Bowsher, 478 U.S. at 721-27.

(4) Marbury, 5 U.S. at 177.

(5) U.S. CONST. art. III, [sections] 2, cl. 1; Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998); see Muskrat v. United States, 219 U.S. 346, 361 (1910).

(6) See Warth v. Seldin, 422 U.S. 490, 498 (1974); Baker v. Carr, 369 U.S. 186, 204 (1961); Liverpool, New York & Philadelphia Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885).

(7) See Sierra Club v. Morton, 405 U.S. 727, 732 (1972); Baker, 369 U.S. at 204.

(8) Steel Co., 523 U.S. at 102; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 72-78 (1978).

(9) Steel Co., 523 U.S. at 102; Defenders of Wildlife, 504 U.S. at 560; United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 686-89 (1973); Sierra Club, 405 U.S. at 735-41.

(10) Steel Co., 523 U.S. at 103; Defenders of Wildlife, 504 U.S. at 560 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)).

(11) Steel Co., 523 U.S. at 102; Defenders of Wildlife, 504 U.S. at 561; see Duke Power Co., 438 U.S. at 74-77; Eastern Ky. Welfare Rights Org., 426 U.S. at 43.

(12) Bennett v. Spear, 520 U.S. 154, 162 (1997); Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970).

(13) Bennett, 520 U.S. at 162.

(14) See, e.g., Defenders of Wildlife, 504 U.S. at 561-62.

(15) "[C]ourts need to accord greater weight than they have in recent times to the traditional requirement that plaintiffs alleged injury be a particularized one, which sets him apart from the citizenry at large." Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U.L. REV. 881, 881-82 (1983) (written when Scalia was a judge on the United States Court of Appeals for the D.C. Circuit). Scalia argued that "concrete injury" is sufficient to confer standing on a plaintiff only if the challenged illegal act is "directed against him," id. at 895, and that courts should be reluctant to confer standing on a plaintiff as a member of a majority, rather than a minority, even where Congress intended to confer standing upon an "expansive" group, id. at 896. See, e.g., Steel Co., 523 U.S. at 105-09 (denying standing to plaintiff in suit brought under the citizen suit provision of the Emergency Planning and Communinity Right to Know Act (EPCRA), 42 U.S.C. [sections] 11046(a)(1) (1994)). Justice Scalia's majority opinion in Steel Co. rejected all five of the plaintiffs' claims as not redressable. Id. at 105. Declaratory judgment would have been "worthless" because the defendant admitted its failure to file timely reports as required by EPCRA. Id. at 106. Civil penalties were paid into the United States Treasury, not to the plaintiffs. Id. "Investigation and prosecution costs" and attorneys fees, even though expressly authorized by statute, would not have provided redress because "a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing suit." Id. at 107. The final two claims for injunctive relief could not "conceivably [have] remed[ied] any past wrong but [were] aimed at deterring" future violations. Id. at 108. It is difficult to imagine any citizen plaintiff who would have standing to bring an EPCRA action under this analysis.

(16) Scalia, supra note 15, at 894.

(17) Id.

(18) See Steel Co., 523 U.S. at 106-07 (denying plaintiff standing in EPCRA citizen suit); Defenders of Wildlife, 504 U.S. at 578 (denying standing in Endangered Species Act citizen suit brought by conservation organization against United States Department of the Interior). But see Bennett, 520 U.S. at 179 (granting industry plaintiff standing in suit against United States Department of the Interior under the citizen suit provision of the Endangered Species Act of 1973 (ESA), 16 U.S.C. [sections] 1540(g)(1) (1994), and Administrative Procedure Act (APA), 5 U.S.C. [sections] 702 (1994)). See also Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885-98 (1990) (finding that environmental group was not a "person adversely affected or aggrieved by agency action" under section 702 of the APA).

(19) See Scalla, supra note 15, at 894 ("[W]hen an individual who is the very object of a law's requirement or prohibition seeks to challenge it, he always has standing."); Defenders of Wildlife, 504 U.S. at 561-62.

(20) JOHN D. ECHEVERRIA & JOHN T. ZEIDLER, BARELY STANDING: THE EROSION OF CITIZEN "STANDING" TO SUE TO ENFORCE FEDERAL ENVIRONMENT LAW 6-7 (1999); see a/so Jim Hecker, EPCRA Citizen Suits After Steel Company v. Citizens for a Better Environment, [28 News & Analysis] Envtl. L. Rep. (Envtl. L. Inst.) 10,306, 10,307 (June 1998).

(21) Akiak Native Community v. United States Postal Serv., No. A97-304, slip op. (D. Alaska Mar. 20, 1998); see also Patty Suilivan, The Kuskokwim Experiment: Hovercraft Delivers Controversy Along with Freight to Riverside Villages, ANCHORAGE DAILY NEWS, Aug. 10, 1997, at Al, available in Westlaw, ANCRG-DNEWS database; Patty Sullivan, 7 Villages Sue Postal Service: Hovercraft Presence Threatens Food Resources, Plaintiffs Say, ANCHORAGE DAILY NEWS, Aug. 7, 1997, at Al, available in Westlaw, ANCRG-DNEWS database.

(22) Plaintiffs Reply to Defendant's Opposition to Plaintiffs Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment at 29, Akiak Native Community (No. A97-304); Memorandum in Support of Plaintiffs Motion for Summary Judgment at 1, Akiak Native Community (No. A97-304).

(23) Memorandum in Support of Plaintiffs Motion for Summary Judgment at 2, 22-23, Akiak Native Community (No. A97-304).

(24) Akiak Native Community, No. A97-304, slip op. at 1-4.

(25) Id. at 1-2 (citing National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4370d (1994 & Supp. II/1997); 39 C.F.R. [subsections] 775.1-11 (1999)).

(26) Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment at 28-29, Akiak Native Community (No. A97-304).

(27) Id. at 29-32.

(28) Akiak Native Community, No. A97-304, slip op. at 17.

(29) Northern Alaska Envtl. Ctr. v. United States Army Corps of Engineers, No. A98-0217, slip op. at 2 (D. Alaska Apr. 19, 1999).

(30) Brief of Appellant at 6-8, Northern Alaska Envtl. Ctr. v. United States Army Corps of Engineers, Nos. 99-35603, 99-35669 (9th Cir. filed July 26, 1999).

(31) Id. at 12.

(32) Id. at 4.

(33) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. Ill 1997).

(34) Brief of Appellant at 4-5, Northern Alaska Envtl. Ctr. (Nos. 99-35603, 99-35669).

(35) See Reply/Opposition Brief of Appellants at 25, Northern Alaska Envtl. Ctr. (Nos. 9935603, 99-35669).

(36) Brief of Appellant at 55-62, Northern Alaska Envtl. Ctr. (Nos. 99-35603, 99-35669).

(37) Northern Alaska Envtl. Ctr. v. United States Army Corps of Engineers, No. A98-0217, slip op. at 8-13 (D. Alaska Apr. 19, 1999).

(38) Id. at 9.

(39) See Northern Alaska Envtl. Ctr. (Nos. 99-35603, 99-35669).

(40) Alaska State Snowmobile Ass'n v. Babbitt, No. A99-0059 (D. Alaska filed Nov. 8, 1999) (order dismissing five plaintiffs for lack of standing).

(41) Defendant-Intervenors' Combined Opposition to Defendants' Cross Motion for Summary Judgment and Reply in Support of Their Motion for Summary Judgment at 26, Alaska State Snowmobile Ass'n (No. A99-0059).

(42) Id. at 26-27.

(43) Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified as amended at 16 U.S.C. [subsections] 3101-3233 (1994)).

(44) 16 U.S.C. [sections] 3170 (1994).

(45) See National Park Service, Statement of Finding: Temporary Closure of the Former Mt. McKinley National Park Area of Denali National Park and Preserve to the Use of Snowmobiles for Traditional Activities (visited Nov. 4, 1999) <http://www.nps.gov/dena/statement.htm.>.

(46) Defendant-Intervenors' Combined Opposition at 1-3, Alaska State Snowmobile Ass'n (No. A99-0059).

(47) Id. at 26-27.

(48) Id. at 28.

(49) Id. at 30-32.

(50) Alaska Snowmobile Ass'n v. Babbitt, No. A99-0059 (D. Alaska Nov. 8, 1999).

(51) Id. at 15-16.

(52) Id. at 2.

(53) Id. at 3. Not satisfied with this result, the Department of Justice then filed a request for reconsideration of the standing issue with the court on November 22, 1999. Defendants' Motion for Reconsideration, Alaska Snowmobile Ass'n (No. A99-059). As of the date this Essay went to press, the court had not ruled on this motion.

(54) See Craig R. Gottlieb, Comment, How Standing Has Fallen: The Need to Separate Constitutional and Prudential Concerns, 142 U. PA. L. REV. 1063, 1138 (1994).

(55) See Zygmunt J.B. Plater, Environmental Law as a Mirror of the Future: Civic Values Confronting Market Force Dynamics in a Time of Counter-Revolution, B.C. ENVTL. AFF. L. REV. 733, 775 n. 140 (1996); Melissa Thorne, Local to Global: Citizen's Legal Rights and Remedies Relating to Toxic Waste Dumps, 5 TUL. ENVTL. L.J. 101,131-32 (1991). (**) As this volume of Environmental Law was going to press, the United States Supreme Court released its decision in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 120 S. Ct. 693 (2000). Laidlaw concerned a Clean Water Act citizen suit by environmental plaintiffs against a wastewater treatment plant for effluent discharges in excess of those permitted by the plant's National Pollutant Discharge Elimination System (NPDES) permit. The plant had ceased the unpermitted discharges shortly after the complaint in the case was fried, and the primary issue before the Supreme Court was whether plaintiffs had standing to maintain the action for the deterrent effect afforded by civil penalties. Id. at 700. In a seven-two decision (Justice Ginsberg writing for the majority, Justices Stevens and Kennedy filing concurring opinions, with Justice Scalia in dissent, joined by Justice Thomas), the Court distanced itself from Justice Scalia's extreme standing arguments.

In the most telling portion of the opinion, the Court rejected the industry defendant's argument that plaintiffs must show proof of harm to the environment from industry's unpermitted discharges. Id. at 704. Rather, the Court held that the relevant showing is not injury to the environment, but rather injury to the plaintiff:

To insist upon the former rather than the latter as part of the standing inquiry ... is to raise the standing hurdle higher than the necessary showing for success on the merits in an action alleging noncompliance with an NPDES permit.

Id. The Court thus reaffirmed that harm to plaintiffs' aesthetic and recreational interests alone are sufficient to establish injury-in-fact. Id. at 705-06.

In response, Justice Scalia lashed out at the majority's "cavalier" treatment of the injury-in-fact requirement:

By accepting plaintiffs'... allegations of "concern" about the environment as adequate to prove injury in fact, and accepting them even in the face of a finding that the environment was not demonstrably harmed, the Court makes the injury-in-fact requirement a sham. If there are permit violations, and a member of a plaintiff environmental organization lives near the offending plant, it would be difficult not to satisfy today's lenient standard.

Id. at 715 (Scalia, J., dissenting). The majority countered that it saw nothing improbable about the proposition that a company's continuous and pervasive illegal discharge of pollutants into a river would cause nearby residents to curtail their recreational use of the waterway and would subject them to other recreational and aesthetic harms.

Id. at 706 (Ginsberg, J., writing for the majority).

The Laidlow decision provides hope that the restrictive views on standing espoused by may litigators and jurists in the late twentieth century will find little footing in the new millennium.