Environmental law, Clapper v. Amnesty International, USA and the vagaries of injury-in-fact: "certainly impending" harm, "reasonable concern," and "geographic nexus."

Author:Gallagher, Patrick

Abstract I. INTRODUCTION II. ARTICLE III STANDING AND ITS CRITICS A. A Brief Review B. What Standing Doctrine Does Not Require III. "CERTAINLY IMPENDING" AND UNCERTAIN HARM A. Certainly Impending and Probabilistic Harm B. The Problem of In tervening Actors IV. UNTANGLING "REASONABLE CONCERN" FROM "CERTAINLY IMPENDING HARM V. GEOGRAPHIC NEXUS, RISK OF HARM AND TOTAL ENVIRONMENTAL IMPACTS A. Geographic Nexus All Over the Map B. The Problem of Indirect and Cumulative Effects VI. CONCLUSION I. INTRODUCTION

Standing law continues to perplex the environmental bar. Criticism of modern "injury-in-fact" doctrine began over twenty years ago, and continues unabated today. (1) Calls for reform include: special Article I courts for environmental litigation; (2) special rules for complex ecosystems; (3) special rules for statistical harm; (4) and a "neo-federalist" overhaul of standing doctrine. (5) Joining the fray, this article examines the Supreme Court's recent decision in Clapper v. Amnesty International USA (6) and proposes some clarifications of three vexing ambiguities in standing law: the concepts of "certainly impending harm," "reasonable concern," and "geographic nexus."

Clapper denied standing to a group of attorneys and human rights, labor, legal, and media organizations ("Respondents"), all of whom challenged the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978. (7) Section 702 authorizes warrantless government surveillance targeting the communications of non-U.S. persons located abroad. (8) It allows the Attorney General and Director of National Intelligence to obtain surveillance authorization from the Foreign Intelligence Surveillance Court ("FISC"), subject to certain conditions, but not requiring probable cause or the identification of specific geographies or individuals targeted. (9)

The Court never reached the merits in Clapper, holding that the Respondents failed to establish injury-in-fact under Article III of the Constitution. It found that any alleged surveillance of the Respondents was not "certainly impending" enough, as several intervening actors, including the FISC, Attorney General, and Director of National Intelligence, would make future, uncertain decisions about whether, how, and where surveillance would be conducted. (10) Clapper also held that any countermeasures taken by the Respondents to avoid surveillance were not based on "reasonable concern," because actual surveillance was not "certainly impending." (11)

Clapper muddies an already confusing body of law, in at least two respects. First, the Court's application of the "certainly impending" test for injury-in-fact has heightened concerns over the level of proof required for standing, including a four-Justice dissent questioning why a "realistic threat" or "realistic danger" of harm no longer suffices for standing. (12) Second, Clapper improperly merges the doctrine of "certainly impending" harm with the doctrine of "reasonable concern" articulated in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (13) These two doctrines must be kept independent for standing law to make any sense in the environmental context.

The broad language in Clapper has generated concern over its application to environmental litigation. (14) Applied incorrectly, Clapper could produce new standing obstacles for environmental plaintiffs. With some clarification, its impact on environmental law will be minimal. Specifically, the "certainly" language in Clapper must not be interpreted as requiring environmental plaintiffs to demonstrate anything near a preponderance of evidence that future harm will occur. The expanding case law on probabilistic harm indicates that much lower risks of harm are justiciable, and that courts will take into account the congressional intent behind the law being enforced, the magnitude of the harm alleged, and the plaintiff's nexus to the disputed action. (15)

In addition, Clapper must not be interpreted as making certainly impending harm a prerequisite to a plaintiff's reasonable concern over violations of environmental laws and decisions to curtail use of a natural resource area, as in Laidlaw. Instead, Clapper should be read only as requiring a geographic or other nexus between the plaintiff and the environmental violations to justify reasonable concern, a view that is consistent with Laidlaw and other precedent.

Ultimately, Clapper can be distinguished from most environmental cases on two bases. First, one can say that the Clapper plaintiffs failed, in the majority's view, to establish a geographic or other nexus between their personal interests and the unconstitutional surveillance alleged. (16) The Clapper plaintiffs were justifiably frustrated in this regard, given the intense secrecy surrounding warrantless surveillance. (17) Nonetheless, for environmental advocates, Clapper echoes similar reasoning in Summers v. Earth Island Institute. (18) In Summers, the Court denied standing to environmental plaintiffs who failed to establish a geographic nexus with specific forest tracts to be logged under revised Forest Service policies governing citizen appeals of timber sales. (19) In this respect, Clapper is nothing new.

Clapper can also be viewed as another, albeit troubling, extension of prior cases denying standing where subsequent, intervening actions were required to consummate the injury-in-fact. The "intervening actor" hurdle began afflicting environmental plaintiffs with Florida Audubon Society v. Bentsen, (20) and continues to create problems for environmental plaintiffs challenging certain types of programmatic agency actions. (21) The "intervening actor" doctrine affects a minority of environmental cases, but could represent trouble if expanded following Clapper.

First, Clapper treated both the defendant and the non-party FISC tribunal as intervening actors; the Court found plaintiffs' injuries too speculative because of the uncertainty surrounding future decisions of the defendant National Intelligence Director and the FISC as to whether, how, and where surveillance might occur. (22) In contrast, the only intervening actors at issue in Florida Audubon were non-party corn and sugar growers. (23) Now that Clapper has included party-defendants in the "intervening actor" rubric, one can imagine a future court applying Clapper to an agency defendant in an environmental case. For example, a court may be tempted to hold that the Forest Service's approval of a programmatic logging plan does not give rise to injury-in-fact, because the agency's future decisions on where to log are too uncertain. As discussed in Parts II and IV below, this problem is more properly treated as a "geographic nexus" issue for environmental cases where an identified tract of land or water, no matter how large, will be affected by programmatic agency decisions.

A more nefarious extension of Clapper would have the "intervening actor" doctrine apply to the holders of federally-issued permits. At least one district court has already cracked open this door, ruling that future injury to environmental plaintiffs with an interest in preserving Blair Mountain, West Virginia, was too speculative because the mining permit holder for a particular site may not actually mine in the future. (24) This misguided reasoning has been rejected by at least one circuit court, and Clapper absolutely must be limited to cases where the geographic location of injury is unknown or so highly speculative as to warrant the denial of jurisdiction.

Part one of this article briefly reviews the doctrinal history of injury-in-fact and its many prominent critics. Part one reiterates the widely espoused view that Justice Scalia's Separation of Powers view of standing is weak, and that Congress' role in delineating justiciable injury remains highly unsettled, especially given Justice Kennedy's position on the issue. Part one also reiterates and emphasizes that Article III standing requires proof of personal harm, not environmental harm.

Part Two examines the various standards lower courts have applied to determine whether Article III injury is "certainly impending." These standards range widely, from "non-negligible" (25) risk to "substantially probable" risk. (26) Following Laidlaw, we know that "certainly impending" does not mean certainly impending environmental harm. It means harm to a person's aesthetic, recreational, health, or other interests in their environment. (27) Part Two reviews the approach of several recent appellate decisions addressing probabilistic injuries to the environment or public health. In these decisions, "certainly impending harm" was measured by several factors, including the underlying statutory intent and the factual nexus of the plaintiff to the illegal conduct. Following these decisions, Part Two argues that "certainly impending" means a credible, non-speculative risk, not something approaching or exceeding 50% probability, as some fear from the language in Clapper. Part Two proposes that Clapper's "certainly impending" test has more to do with geographic nexus and intervening actors than any quantitative metric of proof.

Part Three argues that courts should presume "reasonable concern" in the face of illegal conduct affecting a forest, lake, or other natural resource. Applying Laidlaw, Part Three argues that Clapper improperly predicates "reasonable concern" on "certainly impending" injury, a mistake also made by a handful of recent decisions and commentators in the environmental field. Part Three argues that "reasonable concern" should be presumed where a plaintiff is reacting to violations of environmental law. (28) Courts should acknowledge that Congress imposed strict liability on polluters and errant agencies for a reason, and that citizens are entitled to rely on these safeguards. From a historical perspective, Professor Fletcher might say that courts should not be delving into...

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