Developments in Standing for Public Lands and Natural Resources Litigation

Date01 December 2018
Developments in
Standing for
Public Lands and
by James M. McElsh Jr.
James M. McElsh Jr. is a Senior Attorney
at the Environmental Law Institute.
is Article oers 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 identied, 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 suered 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
suce 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
dicult” 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 aecting 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
Plaintis 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 plaintis 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 aects the recreational or even the mere esthetic interests
of the plainti, that will suce.” 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 (plaintis lack standing where their primary aant’s
geographically specic 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®,, 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 identies 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 plaintis must demonstrate injury-in-
fact, causation, and redressability with respect to very
specic 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 identication 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-specic 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 dierent kinds of injury—some injuries are expe-
rienced at a greater distance tha n others. And it is also clear
that plaintis need not always have physical access to the
site or sites of activity in order to successfully demonstrate
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 adavits
led by the plaintis 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. Plaintis had led these additional
adavits after settlement of the claim to which the previous aant’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).
9. See, e.g., Friends of Santa Clara River v. U.S. Army Corps of Eng’rs, 887 F.3d
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 plaintis before us no longer possess standing, we must dismiss
the aected claims”); Friends of the Earth, Inc. v. Gaston Copper Recy-
cling Corp., 629 F.3d 387, 394-97 (4th Cir. 2011) (holding that plaintis
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
to pursue other claims on appeal); Carr v. Alta Verde Indus., Inc., 931 F.2d
1055, 1061, 21 ELR 21005 (5th Cir. 1991) (reevaluating standing based on
dierent members’ adavits on appeal where defendants settled with, and
stipulated to voluntary dismissal of, members upon whom plainti’s stand-
ing was originally based).
10. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.
ever since Sierra Club v. Morton11 rst dened the scope of
such standing, it will of ten be important to identify addi-
tional forms of injury to demonstrate plaintis’ 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,
plaintis will need to dene 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 plaintis.
Finally, states and tribes oer 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
undened and not particularly stable. States and tribes do
have numerous interests, including proprietary and regu-
latory, that aord 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 identies 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 specic places and with respec t to specic
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®,, 1-800-433-5120.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT