CHAPTER 2 JUSTICIABILITY: BARRIERS TO ADMINISTRATIVE AND JUDICIAL REVIEW
| Jurisdiction | United States |
(Sep 2016)
JUSTICIABILITY: BARRIERS TO ADMINISTRATIVE AND JUDICIAL REVIEW
Partner
Jared Fish
Crowell & Moring, LLP
Washington, DC
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KIRSTEN L. NATHANSON is a partner in the Environment & Natural Resources Group at Crowell & Moring LLP in Washington DC, focusing on environmental litigation, enforcement defense, risk assessment, and regulatory counseling under the major federal environmental and public lands statutes. She currently serves as a member on the firm's Environment & Natural Resources Group Steering Committee. Her litigation experience encompasses citizen suit defense, regulatory challenges, remediation cost recovery and defense, Administrative Procedure Act actions, and EPA enforcement across nearly all federal environmental laws. Among her current representative engagements, she is engaged in CERCLA contribution litigation against the United States for a major energy company, represents leading crop protection companies in ESA-FIFRA litigation challenging product registrations, serves as federal environmental counsel to a corporation across multiple facilities and CERCLA sites, and works as Clean Water Act regulatory and litigation counsel to multiple national trade associations. Kirsten has been recognized as a leading environmental lawyer in Washington, D.C. by Chambers and Partners USA (2013-2015). Her experience includes federal district court motions and trial practice and federal appellate oral arguments. She is admitted to practice before the U.S. Supreme Court and numerous federal appellate and district courts nationwide. Kirsten currently serves on the Board of the Washington, D.C. Chapter of the Women's Energy Network and was a founding President of the Chapter in 2011-2012. She is a past president and a member of the Board of Trustees of the Energy & Mineral Law Foundation and has also led the Crowell & Moring Women Attorneys' Network.
I. INTRODUCTION
Federal natural resource agency decisions rarely please all stakeholders. More often than not, a change in the status quo--be it approval of a federal mine lease or a determination that a parcel of wetlands is jurisdictional--will prompt a legal challenge. Depending on the nature of the dispute, it may be brought either at the administrative agency level or in federal court. In either forum, constitutional and prudential doctrines regulating who can sue--and when--decide whether there exists subject matter jurisdiction to hear a case.
This article explores the justiciability doctrines of standing and ripeness as applicable at both the administrative agency and federal court levels. We also consider two other doctrines--mootness and waiver of sovereign immunity--at the federal court level. While federal courts have an independent obligation to assess their jurisdiction to hear a case, these four doctrines also serve as the defensive shields of administrative agencies, wielded to bat back challenges to agency decisions. We conduct the analysis through the lens of representative environmental cases that have pushed the envelope--or sought to do so--in each area.
Standing, mootness, and ripeness are distinct but interrelated doctrines. Standing focuses on the party bringing suit, and considers whether that party has a concrete stake in the outcome of the case for a true case or controversy to exist. Friends of the Earth, Inc. v. Laidlaw Envtl, Servs., Inc. (TOC), 528 U.S. 167, 191 (2000). Mootness considers whether a party continues to have standing throughout the course of litigation. If a case is no longer "live" or a party lacks a "cognizable interest in the outcome," then a case or controversy ceases to exist and the case may be deemed moot. Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726-27 (2013) (internal quotation marks omitted). The doctrine has therefore been referred to as "standing set in a time frame." Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (internal quotation marks omitted).
Ripeness also assesses a plaintiff's interests in the case, but as evidence of a related but distinct question: whether the agency's decisionmaking process is sufficiently evolved to warrant judicial intervention. The doctrine seeks to limit suits to those in which an "administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
The doctrine that stands apart is waiver of sovereign immunity. Sovereign immunity derives from the Eleventh Amendment to the U.S. Constitution, and prevents a citizen's suit
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against any State. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). There are two exceptions to the prohibition: (i) where Congress expressly waives sovereign immunity through legislation in its exercise of its power to enforce the Fourteenth Amendment, and (ii) where a State waives sovereign immunity by consenting to suit. Id. Whether and to what extent Congress has waived sovereign immunity under environmental laws is the topic addressed below.
1. Justiciability Doctrines in Article III Courts
a. Standing
Article III to the U.S. Constitution limits the judiciary to hearing actual "cases" and "controversies." U.S. Const, art. III, § 2. Part and parcel of determining whether a case or controversy exists is determining whether a plaintiff has standing to sue. The standing doctrine "is related ... to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has 'a personal stake in the outcome of the controversy.'" U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 396-397 (1980) (quoting Flast v. Cohen, 392 U.S. 83, 100-01 (1968)) (internal quotation marks omitted). The standing doctrine thereby "ensure[s], among other things, that the scarce resources of the federal courts are devoted to those disputes in which the parties have a concrete stake." Laidlaw, 528 U.S. at 191.
Standing also seeks to preserve the integrity of our Constitutional system by preventing the judiciary from interfering with the decisions of the political branches--i.e., Congress and the Executive. If a plaintiff could simply bring suit to enforce a public right, without a showing that she suffered some concrete harm to herself, this would, the Supreme Court has said, lure the judiciary into resolving political disputes that are the province of the executive and legislative branches, raising separation of powers concerns. See Spokeo, Inc. v. Robins, No. 13-1339, -- U.S. ---, slip op. at 2 (May 16, 2016) (Thomas, J., concurring).
The three-part Article III standing test is well-established. A party bringing suit must show that she has suffered an injury in fact that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks omitted). In addition, a plaintiff must demonstrate that her injury is "fairly traceable to the challenged conduct of the defendant, and [] that is likely to be redressed by a favorable judicial decision." Spokeo, slip op. at 6 (citing Lujan, 504 U.S. at 560-61).
Organizations can also bring suit on behalf of their members. Organizational standing is satisfied if the organization's "members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Laidlaw, 528 U.S. at 181.
a. Standing Opens The Courthouse Door to the Merits, But How Wide: Does Standing on One Issue Permit a Party to Also Raise Other Issues?
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A litigant must establish standing for a court to have subject matter jurisdiction to hear the merits of a case. But having demonstrated standing for one claim, does a party then get to bring a distinct claim for which it has not satisfied the three-part test--specifically, may a plaintiff press a claim based on an alleged injury that is not "fairly traceable" to the conduct complained of?
This question has, of late, taken on increased salience as plaintiffs increasingly challenge the government's analysis of climate change impacts in permitting and rulemaking decisions, particularly in the National Environmental Policy Act ("NEPA") context. Courts have rebuffed attempts to bring claims based on alleged injuries due to climate change impacts alone, see, e.g., Ctr. for Biological Diversity v. U.S. Dep't of Interior, 563 F.3d 466 (D.C. Cir. 2009), finding that the global nature of climate change makes it nearly impossible to satisfy the standing test's traceability prong. Because carbon dioxide emissions from, for example, a single mine do not have direct, local impacts, a plaintiff is hard-pressed to demonstrate harm resulting from a discrete agency action approving the lease of that particular mine.
Notwithstanding the challenge of asserting standing based on climate change impacts, the United States Court of Appeals for the D.C. Circuit has allowed climate change-based claims to go forward on the merits. See generally WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013). At feast in the context of a procedural harm--e.g., a challenge to a NEPA analysis--if a plaintiff can establish standing for one other claim, then the court has allowed it to bring the climate change-based claim, as well. See id. at 307-08.
In WildEarth Guardians v. Jewell, the D.C. Circuit considered environmental groups' (appellants) NEPA challenge to a Bureau of...
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