The scope of "plaintiffs' harm" in environmental preliminary injunctions.

• Author: Woodward, Amber R.

1. INTRODUCTION

   Deep sea adventurer and advocate Jacques Cousteau once stated: "The happiness of the bee and the dolphin is to exist. For man it is to know that and to wonder at it." (1) An environmental enthusiast might consider this statement a testimonial for wildlife's "right to exist." Those less keen on a broad reading of animal rights might argue that it buttresses the claim that animals' right to exist depends upon humans' desire to enjoy that existence. (2) As the dominant earth species, Homo sapiens have power over the fate of weaker beings--power that is harnessed by environmental legislation. While animal rights laws have existed in rudimentary form since the third century BC, major wildlife protection legislation first appeared in the United States in the early 1970s. (3) With thousands of species facing extinction, congress enacted legislation protecting the plant and animal life of our ecosystem. Laws such as the Endangered Species Act of 1973 (ESA) (4) and the National Environmental Protection Act of 1969 (NEPA) (5) have made great strides in shielding vulnerable wildlife. Judicial restrictions on civil environmental litigation, however, confine the focus of lawsuits to the aesthetic, recreational, and scientific needs of humans, rather than the common underlying motivation for such litigation--the desire to curtail wildlife harm and destruction. (6)

   In 2008, in Winter v. Natural Resources Defense Council, (7) the Supreme Court vacated a preliminary injunction that had prevented the Navy's use of active sonar emission in breeding grounds and migratory routes of thousands of bottlenose dolphins, beaked whales, and other marine mammals. The Winter decision made several significant changes to legal standards, most of which have been addressed by scholars and subsequent lower court rulings. (8) An aspect of the Winter opinion thus far neglected by scholars, however, lies in what the majority failed to address. The Winter Court bypassed an opportunity to establish a clear standard for whether animal harm should be considered within the scope of "plaintiffs' harm" (9) under the test for preliminary injunctions in civil environmental litigation. Indeed, the majority opinion may have confused courts further by tacitly adopting the restrictive minority definition of the scope of "plaintiffs' harm" in dicta. (10)

   This Note begins by exploring the reasons that human advocates initiate litigation on behalf of animals and by describing the wildlife protection statutes and citizen suit provisions that help them do so. Part II discusses judicial ambiguity as to whether the scope of "plaintiffs' harm" in preliminary injunction analysis for civil environmental disputes includes only the harm to the human plaintiff with standing, the harm to the animal whose injury is often the underlying motivation for litigation, or the harm to both. Part III analyzes the recent Supreme Court decision in Winter and the majority's implicit exclusion of injury to marine mammals from the scope of "plaintiffs' harm." Finally, Part IV offers three approaches to clarify the definition of "plaintiffs' harm" within the standing doctrine and the test for preliminary injunctions: Courts could maintain the current standing doctrine and, in preliminary relief analysis, define "plaintiffs' harm" only as the harm to the human with standing; they could maintain the current standing doctrine but consider both the human harm and harm to animals in preliminary relief analysis; or (more radically) they could give animals standing to sue in their own right, dispose of the pretense of human injury, and consider only the animals' harm in determining the appropriateness of a preliminary injunction. This Note suggests that the second approach is most realistic and appropriate, as it offers a parallel between constitutional standing and preliminary injunction analysis and also aligns with public policy supporting wildlife protection.

2. CIVIL SUITS FOR ENVIRONMENTAL AND WILDLIFE PROTECTION

   1. Environmental and Wildlife Protection Statutes

      In the United States, animals retain property status. (11) In most states, if a family pet is injured by a third party, the family can recover only the fair market value of the animal less its depreciation in value since the date of purchase. (12) Monetary recovery for the accidental loss of a beloved kitten might be limited to twenty dollars, without regard to the owner's emotional attachment. (13) Of course, the pet has no right of its own to sue its assailant. No one other than the pet's legal owner has standing to sue when the animal is injured, and the only damages the owner could receive are for the conversion of property. (14)

      The avenues of recovery expand, however, when a federal statute provides protection over a particular species of wild animal, such as the endangered bald eagle or chimpanzee. (15) Many of these federal environmental statutes include citizen suit provisions awarding the public special power to sue on behalf of threatened animals, despite lacking ownership. (16)

      The ESA is one of the most well known of these environmental statutes. Its purpose is to protect the earth and its animals, which have "esthetic, ecological, educational, recreational, and scientific value to our Nation and its people." (17) The ESA requires the U.S. Fish and Wildlife Service of the U.S. Department of the Interior to list and categorize species it considers to be endangered, threatened, or of concern. (18) These species are afforded special limited protection from harm, harassment, and capture ("takings"). (19)

      Like the ESA, the Marine Mammal Protection Act (MMPA) prohibits harmful activity affecting endangered or depleted species of marine mammals (including dolphins, seals, sea lions, whales, and polar bears). (20) The MMPA affords slightly less protection than the ESA by permitting a wider range of adverse human activity. (21) The Coastal Zone Management Act (CZMA) was similarly implemented to protect the nation's coasts, fish, wildlife, and natural characteristics, as well as humans' ecological, commercial, and recreational interests in those objects. (22) The CZMA grants states significant power to implement legislation to protect and administer the state's coastline. (23)

      Another major vehicle for environment protection is the National Environmental Policy Act (NEPA), which addresses actions of the federal government that may adversely affect the environment. (24) NEPA requires that all federal agencies, including the military, file an Environmental Impact Statement (EIS) in such situations. (25) The EIS is a detailed report following extensive investigation and research of the possible negative impact of government activities on wildlife and natural resources. (26) The Environmental Protection Agency (EPA) reviews and rates all EISs and suggests reasonable alternatives to proposed actions that might mitigate foreseeable environmental harm. (27) For example, should the military choose a site for missile testing, it must hire experts to determine the potential short- and long-term harm to the soil, water, air, and plant and animal life. The military will submit its EIS, and the EPA may suggest that the military choose a less intrusive site, relocate the wildlife, or plant trees elsewhere to replace those to be destroyed. Should the EPA fail to prosecute perpetrators, civil suits by concerned citizens are the only remaining avenue for wildlife protection. (28)

   2. Standing to Sue in Civil Environmental Actions

      It is necessary to understand the arduousness of the standing doctrine in environmental litigation in order to appreciate why courts are ambiguous in conducting harm analysis under the test for preliminary injunctions. Article III of the U.S. Constitution requires that all matters before the court be a case or controversy. (29) Plaintiffs must meet both constitutional and prudential standing requirements in order to sue. (30) Constitutional standing requires that a plaintiff establish personal injury, that the defendant's conduct traceably caused the injury, and that the injury is likely to be redressed through court-awarded damages or injunctive relief. (31) Additional prudential limitations bar standing for third parties, generalized grievances, and claims outside statutory zones of interest. (32)

      When an individual or, as is more common, an environmental rights organization seeks to sue on behalf of an animal or species, the standing doctrine requires that at least one of the human plaintiffs satisfies all of these requirements. (33) Plaintiffs may not establish standing by invoking the animals' injury, but rather must claim that the defendant's harm to the animals negatively impacted the humans' rights. (34) Examples of sufficient human injuries include impediments to the right to study and observe the animals (if the plaintiff is a scientist or scholar) or a strong and particularized emotional attachment. (35)

      Associational standing is permitted where, in absence of injury to itself, an organization asserts a case on behalf of its members who can simultaneously establish individual standing. (36) Civil environmental plaintiffs, which are typically large environmental advocacy organizations, often rely on associational standing when the injuries to the organization and its individual members "are in every practical sense identical." (37)

      It is clear that Congress has not granted animals standing to sue in their own right, (38) though Article III of the U.S. Constitution may not prevent it from doing so. (39) Instead, when Congress enacted environmental statutes, it included citizen suit provisions that permit the public to challenge government actions that adversely affect the ecosystem or wildlife within it. (40) Under such provisions, Congress limited the available relief to equitable relief, including preliminary and permanent injunctions. (41) Violations of environmental statutes...