Environmental citizen suits and the zone of interest test.

• Author: Becker, Kathleen C.
• Position: 1995 Ninth Circuit Environmental Review - Case Note

1. INTRODUCTION

   Like most environmental protection statutes,(1) the Endangered Species Act of 1973 (ESA)(2) contains a provision allowing "any person" to bring suit to enjoin an alleged violation of the Act.(3 )What appears to be a clear and unambiguous grant of authority, however, has generated an incredible amount of litigation and disagreement. Bennett v. Plenert(4) is one of the most recent examples. In Bennett, the Ninth Circuit held that ranchers and irrigators did not have standing to sue under the ESA because their purpose in bringing suit conflicted with the purposes of the ESA and therefore they were not within the ESA's zone of interest.(5) By foreclosing court access to those with "un-green" motives, this holding not only injects a substantive inquiry into the standing analysis, but also borders on policy making. Bennett's holding is representative of the widespread confusion over the concept of standing,(6) the role of "prudential" concerns in the standing analysis,(7) and more specifically, the meaning and use of the zone of interest test.(8)

   This Chapter addresses whether the zone of interest test should apply to environmental citizen suits. Part II provides background for court treatment of standing issues, particularly U.S. Supreme Court precedent for the zone of interest test. Part III considers the Ninth Circuit's holding in Bennett, as well as the decisions of other courts that have confronted similar questions about the use of the zone of interest test. Part IV sets out the correct analysis for determining whether the zone of interest test applies to environmental citizen suits, finding that Congress did not grant standing to the limits of Article III. Part V provides some options that the Supreme Court may utilize for determining to what extent Congress did grant standing. The Chapter concludes that the Bennett zone of interest test should be overruled insofar as it requires the plaintiff's motive to coincide with the purposes of the statute. However, either the D.C. Circuit's interpretation of the test or possibly a new proximity test may still be useful in the citizen suit context as a means to exclude plaintiffs who do not have a primary relation to the environmental statute on which they rely. The current Article III test for standing is insufficient to keep parties who are only unintended, incidental beneficiaries of a statute from bringing suit. Thus the zone of interest test should be clarified and redefined to deny standing only to those plaintiffs whose interest to the statute in question is too attenuated.

2. STANDING AND THE ZONE OF INTEREST TEST

   1. General Principles of Standing Law

   Standing refers to the Article III requirement that judicial review be limited to cases and controversies.(9) The U.S. Supreme Court has interpreted this phrase to mean that each litigant must have a concrete and personal stake in an otherwise justiciable controversy.(l0) The Court described the "irreducible constitutional minimum" requirements of standing in Lujan v. Defenders of Wildlife: (11) 1) The plaintiff must have personally suffered a concrete "injury in fact" to a legally protected interest or such an injury must be imminent or impending; 2) the injury must be fairly traceable to the challenged action; and 3) it must be likely, not merely speculative, that a favorable decision will redress the injury.(12)

   In addition to the constitutional requirements for standing, courts have imposed "prudential" requirements.(13) Prudential limitations refer to court-created rules for distinguishing the types of actions courts are willing to hear. They are "the judicially self-imposed limits on the exercise of federal jurisdiction."(14) Prudential limitations are premised in policy, not the Constitution.(15) A court has discretion in whether and what prudential considerations to use,(16) as long as Congress has not granted standing to the full limit of Article III.(17) Because of this discretion, prudential considerations are applied inconsistently, and the Supreme Court has yet to address fully what their rightful place in standing may be.(18)

   Prudential standing inquiries have traditionally been limited to three policy requirements: 1) that the injury relate to the plaintiff personally, (19) 2) that the plaintiff not bring generalized grievances,(20) and 3) that the litigant's complaint be "within the zone of interests to be protected or regulated by the statute . . . in question."(21) This third requirement is known as the zone of interest test.

   The zone of interest test has been used increasingly in environmental cases to help courts determine whether a plaintiff's injury is of the type Congress contemplated to be protected by the underlying environmental statute. Commentators and litigants have criticized this practice as unduly narrowing standing because the zone of interest test comes from specific language in the Administrative Procedure Act (APA)(22) stating that any person aggrieved . . . within the meaning of a relevant statute" may bring an action.(23) The ESA's citizen suit provision,(24) as well as other environmental statutes,(25) does not use such limiting language, stating instead that "any person" may sue under the Act. In order to better understand the allowable use and meaning of the zone of interest test, this Chapter discusses the origin and resulting applications of the test.

   The zone of interest test originated in Association of Data Processing Service Organizations v. Camp (ADP).(26) Data processors brought an action under section 702 of the APA,(27) which grants judicial review to a person "aggrieved . . . within the meaning of a relevant statute."(28) They were challenging a ruling allowing national banks to provide data processing services directly to customers and to other banks.(29) The data processors argued that this ruling would injure their competitive interests, and thus they should have standing to sue.(30) The Court, focusing on the APA requirement that the plaintiffs be "within the meaning of a relevant statute" before they can obtain judicial review, looked at the Bank Service Corporation Act and the National Bank Act to see whether actions such as the data processors' had been precluded by Congress.(31) The Court found no intent to preclude review, and recognizing a "trend [ ] toward enlargement of the class of people who may protest administrative action," granted judicial review.(32)

   The Supreme Court has seldom used the test outside this context.(33) Yet it has listed the zone of interest test as a general prudential consideration,(34) thus allowing lower courts discretion in deciding when to use it.(35) In trying to address its unclear use of the zone of interest test, the Court created more confusion than it clarified. In Clarke v. Securities Industry Association,(36) a trade association of securities brokers, dealers, and underwriters brought suit under the APA challenging the approval of two banks' applications to establish discount securities brokerage offices.(37) The Court held that because the securities brokers had a plausible relationship to the policies for which Congress passed the National Bank Act, they were within the zone of interest of that statute, and therefore had standing.(38) In so reaching, however, the Court engaged in substantial dicta on the zone of interest test. The Court stated that

   The 'zone of interest' test is a guide for deciding whether, 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. In cases where the plaintiff is not itself

   the subject of the contested regulatory action, the [zone of interest] test

   denies a right of review if the plaintiff's interest are so marginally related

   to or inconsistent with the purposes implicit in the statute that it cannot

   reasonably be assumed that Congress intended to permit the suit.(39)

   Further, the Court stated that "[the zone of interest test] is not a test of general applicability.... We doubt, however, that it is possible to formulate a single inquiry that governs all statutory and constitutional claims."(40) By using such non-specific language, and by not limiting its observations to the APA and the other limited situations in which the test has been used, the Court created general rules for application of the zone of interest test in other contexts.(41) In fact, the Court never mentions that the case it was deciding was in fact brought under the APA, but instead chooses to phrase its holding in broad terms about the zone of interest test. Thus lower courts have disagreed as to whether they had been given license to apply the zone of interest test outside the traditional realm.(42) Indeed, the Ninth Circuit in Bennett misconstrued Clarke to be a non-APA application of the zone of interest test.(43)

3. THE ZONE OF INTEREST TEST AS CURRENTLY APPLIED IN CITIZEN SUITS

   1. The Ninth Circuit: Bennett v. Plenert

      In Bennett v. Plenert,(44) the Ninth Circuit recently held that irrigation districts and ranchers with commercial land recreational interests were not within the zone of interest of the ESA.(45) The Bureau of Reclamation (BOR), which manages the Clear Lake and Gerber Reservoirs in Oregon and California, consulted the U.S. Fish and Wildlife Service (FWS) pursuant to section 7 of the ESA. Section 7 required FWS to assess the impact of reservoir activities on two species of endangered fish: the Lost River and shortnose suckers.(46) FWS released a biological opinion concluding that the proposed operation of the reservoirs would jeopardize the species of concern and suggesting that increasing the minimum lake level would avoid jeopardy.(47) BOR adopted FWS's recommendation.(48)

      Irrigation districts and ranchers, who use the reservoir for recreational and commercial irrigation purposes, sued FWS under the citizen suit provision of the ESA. They alleged that FWS...