STANDING ON ITS LAST LEGS: BENNETT V. SPEAR AND THE PAST AND FUTURE OF STANDING IN ENVIRONMENTAL CASES STANDING ON ITS LAST LEGS: BENNETT V. SPEAR AND THE PAST AND FUTURE OF STANDING IN ENVIRONMENTAL CASES SAM KALEN[*] Copyright © 1997 Florida State University Journal of Land Use & Environmental Law No man is an IIand, intire of itselfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any man's death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; it tolls for thee.[1] BLOCKQUOTE> I. INTRODUCTION The law of "standing" in environmental disputes appears to be resting on its last legs, and well it should be. Arguably, standing's fate has been sealed since its conception in the 1970s.[2] Now, approximately a quarter of a century later, standing is on the verge of collapsing onto its weak intellectual foundation. The standing doctrine is that part of the "law of judicial jurisdiction" that "determines whom a court may hear make arguments about the legality of an official decision."[3] Almost twenty years ago, Joseph Vining viewed standing with "a sense of intellectual crisis."[4] In the years since, that intellectual crisis has grown. The Supreme Court's recent decision in Bennett v. Spear[5] reflects one aspect of how this crisis has become too unwieldy. As such, the Bennett decision either marks a turning point in the treatment of standing in environmental cases or, in conjunction with other looming issues, highlights the need for the Court to reconsider the prudential and constitutional aspects of the doctrine of standing. Anything less will leave the law of standing in environ mental cases in disarray. The law of standing consists of both constitutional and prudential components.[6] In order to satisfy the constitutional requirement for standing under Article III of the United States Constitution, which limits federal courts to deciding "cases" or "controversies," a party must suffer an "injury in fact" from a governmental action, and that injury must be fairly traceable to the challenged action and redressible by a favorable decision.[7] To suffer an injury in fact, the plaintiff must be among those injured by the action.[8] The prudential aspect of standing is somewhat a misnomer because it reflects the Court's interpretation or "gloss" on section 10 of the Administrative Procedure Act (APA),[9] which allows parties who are "adversely affected or aggrieved by [Federal] agency action within the meaning of a relevant statute" to seek judicial review.[10] The Court developed the "zone of interests" test to serve as a guide for determining when, "in view of Congress' evident intent to make agency action presumptively reviewable, a particular plaintiff should be heard to complain of a particular agency decision."[11] This zone of interests test requires that "a plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit."[12] This article argues that the Supreme Court's standing decisions, employing the above requirements in environmental disputes, have been flawed. Those flaws have led to considerable confusion and disagreement among the lower federal courts on how to apply the rules of standing, primarily in cases involving the National Environmental Policy Act of 1969 (NEPA)[13] and the Endangered Species Act (ESA).[14] The article concludes that those flaws are so serious and fundamental that the law of standing in environmental cases can only be rescued if the original principles are revisited.[15] Going back to original principles entails reexamining the justification for both the zone of interests test and the requirements for Article III standing. Neither the zone of interests test nor the Court's current articulation of the Article III standing requirements can appropriately or even logically define the group of litigants Kale.html[7/7/2015 3:03:29 PM] STANDING ON ITS LAST LEGS: BENNETT V. SPEAR AND THE PAST AND FUTURE OF STANDING IN ENVIRONMENTAL CASES entitled to bring lawsuits claiming violations of the ESA or NEPA. While the Court's recent decision in Bennett v. Spear may signal a limited future, if any, for the zone of interests test in many environmental cases, a similar fate should await the Article III standing requirements as they are presently applied. The need for litigants, particularly environmental organizations, to show that they or one of their members is personally injured can no longer serve as a viable and intellectually honest requirement for environmental cases, at least for those cases brought under NEPA or the ESA. II. CITIZEN ACCESS TO THE COURTS Not until the 1960s did litigants begin to view the courts as possibly objective arbiters in environmental disputes. During those years, a doctrinal shift began to take place that recognized the role of citizens and courts in the administration of governmental programs.[16] This development in administrative law was seen by many as a victory in the effort to cast aside the private or common law model that had dominated for so many years.[17] Previously, in both private or public disputes, courts generally applied the private law model that required that the plaintiff establish a "legal interest," which effectively limited standing to those with an economic interest: At both private and public law, the question was not whether the litigant was harmed or whether the governmental or non-governmental defendant acted unlawfully, but whether the government breached some duty owed to the litigant. If the litigant had no common-law interest at stake—if it was not the "object" of the regulation—courts saw no legal duty suitable for legal redress.[18] However, once beneficiaries of regulatory programs began to convince courts of their right to seek judicial review of agency decisions on a par with those being regulated (such as the objects of the regulation), the private law model of a "legal interest" appeared problematic. Citizens who benefited by having an effective regulatory program could solicit help from the judiciary to control allegedly aberrant administrative behavior but could not claim a violation of any legal interest or express duty owed to them specifically.[19] In 1970, therefore, the Supreme Court abandoned requiring a legal interest for cases brought under the APA.[2]0 In Association of Data Processing Service Organizations v. Camp[2]1 and Barlow v. Collins,[22] the Court broadened the class of those entitled to seek judicial review under the APA to include a party with an injury in fact that is "arguably within the zone of interest" protected by the statutory or constitutional provision at issue.[23] These decisions offered the potential for increased citizen access to the courts, viewed by many as an important mechanism for avoiding what has been called "regulatory capture."[24] Dan Tarlock observed that in the environmental area, "Professor Sax provided the most coherent justification for creative lawyers," in that Sax "attempted to reconcile environmental law precepts with New Deal administrative law and separation of powers principles."[25] Joseph Sax explained that citizen participation and judicial involvement are consistent with our tripartite constitutional system and serve as an important check on how agencies evaluate and respond to environmental issues.[26] This doctrinal shift occurred as the courthouse doors began to open for environmental disputes. Parties who had once attempted to use devices such as qui tam lawsuits to abate pollution[27] now focused on other statutory programs, such as the environmental impact state ment (EIS) requirement under NEPA[28] and the United States Army Corps of Engineers' permitting program under the Refuse Act[29] to control discharges of pollution into our nation's waterways, a program soon overtaken by the 1972 Clean Water Act (CWA).[30] In the same year as the first Earth Day, Congress in the 1970 Clean Air Act (CAA) authorized citizen suits,[31] a now accepted component of environmental legislation.[32] These and other developments gave environmental advocates hope that environmental concerns would become part of the "public law."[33] The early 1970s, therefore, offered considerable promise for environmental groups to supervise possibly captive regulatory agencies by taking their concerns to court. NEPA provided the groups with a legally identifiable opportunity to question federal agency decisions and, if necessary, to litigate.[34] Coupled with the APA, NEPA offered the promise of a federal judicial forum unencumbered by old private law model Kale.html[7/7/2015 3:03:29 PM] STANDING ON ITS LAST LEGS: BENNETT V. SPEAR AND THE PAST AND FUTURE OF STANDING IN ENVIRONMENTAL CASES requirements.[35] Additionally, precedent existed for the argument that parties interested in protecting the environment had a cognizable interest sufficient to allow them to maintain a lawsuit.[36] As early as 1943, Judge Jerome Frank interpreted language allowing "aggrieved" persons to seek judicial review as embracing a private attorney general theory.[37] Less than twenty years later, Judge Bazelon echoed a similar theme when the Environmental Defense Fund challenged a federal agency action under the Federal Insecticide, Fungicide, and Rodenticide Act,[38] with the injury described as the Sbiological harm to man and to other living things resulting from the Secretary's failure to take action which would restrict the use of DDT in the environment."[39] Citing a variety of earlier cases, Judge Bazelon wrote that "[c]onsumers of regulated products and services have standing to protect the public interest in the proper administration of a regulatory system enacted for their benefit.