Developments in Standing for Public Lands and Natural Resources Litigation
| Date | 01 December 2018 |
| Author |
48 ELR 11098 ENVIRONMENTAL LAW REPORTER 12-2018
Developments in
Standing for
Public Lands and
Natural
Resources
Litigation
by James M. McElsh Jr.
James M. McElsh Jr. is a Senior Attorney
at the Environmental Law Institute.
Summary
is Article oers a framework for analysis of potential
developments in the law of standing in cases involv-
ing public lands and natural resources. It is based
on recent federal case law and academic literature
addressing the law of standing in cases that involve
planning, conservation, exploitation, and disposition
of public lands and resources administered by the fed-
eral government. While necessarily grounded on U.S.
Supreme Court doctrines, the focus is on the appli-
cation and development of standing law in the lower
federal courts. e Article examines public lands and
natural resources cases decided by the U.S. Courts of
Appeals since the turn of the 21st century in order
to capture developments applying standing doctrines
within the modern Supreme Court framework. It also
discusses district court opinions, particularly in the
D.C. Circuit and in the western circuits, mostly where
these were nal decisions on standing issues. It identi-
es current developments, and incremental and logi-
cal steps that might support and extend the ability of
interested parties to access judicial review.
The U.S. Supreme Court has identied, and
grounded in Article III of the U.S. Constitution,1
three “irreducible” requirements for plainti s to
have standing to maintain an action in federal court. To
establish standing , a plainti must have suered an injur y-
in-fact, an invasion of a legally protected interest that is
“concrete and particularized ” and “actual or imminent,”
not conjectural or hypothetical. e injury must be “ fairly
traceable” to the challenged ac tion of the defendant. And it
must be likely that a favorable judicial decision will prevent
or redress the injury.2
ese standards ensure that a plainti has alleged “such
a personal stake in the outcome of the controversy”3 as to
assure concrete adverseness warranting invocation of the
jurisdiction of federal courts. Genera lized grievances, such
as concern for harm to natural resources alone, will not
suce to support standing.4 Further, a plainti “bears the
burden of showing that [it] has standing for each type of
relief sought.”5
When the plainti is not itself the object of the govern-
ment action or inaction it challenges, the Supreme Court
has observed that sta nding is ordinarily “substantially more
dicult” to establish.6 Nevertheless, a substantial body of
case law has ari sen that supports the invocation of standing
by public interest organizations and their members, state
and local governments, and tribes, in cases involving man-
agement of public lands and resources and the regulation
of activities aecting those resources.
In addition to the Article III requirements, the Supreme
Court has also applied a “zone of interests” test for stand-
ing, designed to limit courts’ involvement to cases in which
the claim asserted by the plainti arguably falls within the
substantive category of claims that the underlying law was
explicitly or implicitly designed to protect.7
Plaintis must maintain standing throughout the
course of the litigation, not merely at the time when the
litigation was led or when initial motions to dismiss are
decided.8 Organizational plaintis must use great care
1. U.S. C. art. III, §2, cl. 1.
2. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 22 ELR 20913 (1992);
Summers v. Earth Island Inst., 555 U.S. 488, 39 ELR 20047 (2009).
3. Warth v. Seldin, 422 U.S. 490, 498-99 (1975).
4. Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1976). However, if
that harm “in fact aects the recreational or even the mere esthetic interests
of the plainti, that will suce.” Summers, 555 U.S. at 494 (citing Morton,
405 U.S. at 734-36).
5. Summers, 555 U.S. at 493.
6. Lujan, 504 U.S. at 562.
7. Bennett v. Spear, 520 U.S. 154, 27 ELR 20824 (1997).
8. Summers, 555 U.S. 488 (plaintis lack standing where their primary aant’s
geographically specic claim of injury was settled by the government during
Author’s Note: Additional research assistance and writing
supporting portions of this Article were provided by ELI Public
Interest Law Fellow Taylor Lilley (organizational standing) and
legal interns Katie Slattery (geographical nexus) and Caroline
McHugh (administrative standing).
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
12-2018 NEWS & ANALYSIS 48 ELR 11099
in pleading injury, and should plan to demonstrate suf-
cient evidence of injury for (potentially) a period of many
years and encompassing multiple sites, in order to avoid an
unwelcome loss of standing on appeal or on remand.9
is Article identies and discusses current standing
issues and doctrines in t he following areas relevant to public
lands litigation: geographical locus of the injury; increased
risk of harm as an injury; procedural injury; in formational
injury; the “zone of interests” test; organizational stand-
ing; standing of states a nd Indian tribes; and sta nding in
administrative tribunals.
Public interest plaintis must demonstrate injury-in-
fact, causation, and redressability with respect to very
specic places and times. A s the federal courts become
increasingly particu lar when applying technical doctrines
and constitutionally derived limitations to avoid deci-
sions or to deny relief, the task of the litigator at the com-
mencement of litigation has become far more complex.
e careful identication of a geographic nexus between
the plainti ’s members and a claimed injury remains
fundamental, even exacting. Redundancy of declarations
and invocation of multiple site-specic injuries are help-
ful, even in the relatively lenient area of Clean Water Act
(C WA)10 claims, given some circuits’ insistence on very
close correspondence of the site of injury with the scope
of the legal claims. Nevertheless, the case law also shows
some substantial exibility in identif ying the geographic
scope of dierent kinds of injury—some injuries are expe-
rienced at a greater distance tha n others. And it is also clear
that plaintis need not always have physical access to the
site or sites of activity in order to successfully demonstrate
injury-in-fact.
While aesthetic and recreational injuries are still the
mainstay of public lands and natural resources pleading
the litigation). e Supreme Court did not consider additional adavits
led by the plaintis in the district court: “If respondents had not met the
challenge to their standing at the time of judgment, they could not remedy
the defect retroactively.” Id. at 495 n.6. Plaintis had led these additional
adavits after settlement of the claim to which the previous aant’s declara-
tion related, in response to the government’s rst challenge to the plainti’s
standing. See id. at 508-09 (Breyer, J., dissenting).
906, 917 (9th Cir. 2018) (“because the need to satisfy Article III require-
ments persists throughout the life of the lawsuit, if circumstances change
such that plaintis before us no longer possess standing, we must dismiss
the aected claims”); Friends of the Earth, Inc. v. Gaston Copper Recy-
cling Corp., 629 F.3d 387, 394-97 (4th Cir. 2011) (holding that plaintis
maintained standing on appeal through members Jones and McCullough
after member Shealy, upon whom standing was based in the district court,
died prior to the date of judgment); Powder River Basin Res. Council v.
Babbitt, 54 F.3d 1477, 1485, 26 ELR 20789 (10th Cir. 1995) (holding
that because defendant’s payment of attorney fees to plainti remedied the
injury upon which standing was originally based, plainti lacked standing
1055, 1061, 21 ELR 21005 (5th Cir. 1991) (reevaluating standing based on
dierent members’ adavits on appeal where defendants settled with, and
stipulated to voluntary dismissal of, members upon whom plainti’s stand-
ing was originally based).
ever since Sierra Club v. Morton11 rst dened the scope of
such standing, it will of ten be important to identify addi-
tional forms of injury to demonstrate plaintis’ need for
judicial relief. Among key concepts are the circumstances
under which a governmental action or failure limits a per-
son’s ability to look out for himself or herself in avoiding
injury. As generalized harm becomes harder to rely on,
plaintis will need to dene injury in terms of reasonable
risk avoidance activities. Such concepts underlie the case
law dealing with probabilities of risk as a component of
injury-in-fact, and the increasing occurrence of standing
claims based on informational injury.
e case law has shif ted in the “prudential standing”
area known as the “zone of interests” test. Indeed, the
Supreme Court recently revisited this doctrine, using dif-
ferent terminology. But at bottom, the issue is the need
for even more careful pleading, and especially the ability
to identify actions governed by the statutes at issue that
include considerations important to the plaintis.
Finally, states and tribes oer some advantages in sta nd-
ing for public lands litigation, but the scope of the “special
solicitude” recognized by the Supreme Court in Massachu-
setts v. Environmental Protection Agency12 remains largely
undened and not particularly stable. States and tribes do
have numerous interests, including proprietary and regu-
latory, that aord opportunity for standing even if only
modestly aided by Supreme Court deference; these include
issues related to waters, submerged lands, wildlife, and ter-
ritorial extent, among others.
To some extent, standing doctrine ha s evolved in the
direction of “code pleading” with a need for elaborate and
well-documented showings of injury, causation, redress-
ability, and zone of interest that may require proof at every
stage of the litigation—even after entry of judgment. is
Article identies and exa mines in detail many of the key
considerations and recent developments.
I. Geographical Connection of Injury
to Action Challenged
e Supreme Court has determined that an a ssociation has
standing under Ar ticle III where (1)at least one of its mem-
bers would have standing to sue in its own right, (2)the
interest it seeks to protect is germane to the organization’s
purpose, and (3)neither the claim asserted nor the relief
requested requires the member to participate.13 In many
public lands and natural resources cases, organizations’
ability to allege and maintain standing depends on their
demonstration of concrete and particulariz ed injuries to
their members at specic places and with respec t to specic
11. 405 U.S. 727, 2 ELR 20192 (1976).
12. 549 U.S. 497, 37 ELR 20075 (2007).
13. Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343
(1977); Warth v. Seldin, 422 U.S. 490, 510-11 (1975).
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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