Ripening green litigation: the case for deconstitutionalizing ripeness in environmental law.

Author:Coon, Nora
  1. INTRODUCTION II. MERGING THE DOCTRINES OF STANDING AND RIPENESS A. Ripeness: "Standing on a Timeline" or Prudential? B. Data on the Conflation of Standing and Ripeness in the Ninth Circuit's Environmental Law Cases 1. Combining the Standing and Ripeness Analyses 2. Source of Ripeness Doctrine III. DISTINGUISHING BETWEEN STANDING AND RIPENESS A. Standing is a Constitutional Doctrine that Limits Jurisdiction B. Ripeness is a Prudential Doctrine 1. The Supreme Court's Orphan Ripeness Doctrine 2. The Ninth Circuit's Treatment of Ripeness a. The Firm Prediction Rule: Freedom to Travel Campaign v. Newcomb b. The Abrupt Narrowing of Standing and Ripeness in the Ninth Circuit: Thomas v. Anchorage Equal Rights Commission c. The Future of the Ninth Circuit's Approach to Ripeness: Montana Environmental Information Center v. Stone-Manning IV. THE FUTURE OF THE PRUDENTIAL RIPENESS DOCTRINE A. Recent Supreme Court Jurisprudence B. The Effect on Courts of an End to Prudential Ripeness 1. Statutory and Constitutional La w Perform the Same Function as Prudential Ripeness 2. Constitutional Ripeness is Redundant V. CONCLUSION APPENDIX I: COMBINED ANALYSES--NINTH CIRCUIT APPENDIX II: SEPARATE ANALYSES--NINTH CIRCUIT I. INTRODUCTION

    An environmental plaintiff must clear numerous hurdles when seeking judicial review of an agency action, (1) whether that action is granting a mining permit, approving an oil spill response plan, or failing to safeguard statutorily protected land. (2) The question of justiciability bars many such suits from a decision on the merits. (3) While all cases in federal court must be justiciable, (4) justiciability's demands have a particularly pronounced effect in public law such as environmental litigation. (5) This Chapter focuses on standing and ripeness, two of the justiciability doctrines that routinely prevent courts from reaching the merits of environmental cases. (6) Standing and ripeness have different legal sources, but courts routinely conflate them. (7)

    Prudential ripeness balances the fitness of an issue for judicial review with the harms caused to each party by delaying review, (8) while the current doctrine of constitutional ripeness requires a concrete injury. (9) Similarly, to show standing, a plaintiff must demonstrate a concrete, particularized, and actual or imminent injury that is fairly traceable to the defendant's action and can be redressed by a favorable court decision. (10) While the requirement of standing is by now firmly rooted in Article III of the United States Constitution as a jurisdictional limit on the power of federal courts, the legal source of ripeness is less clear. (11) Courts frequently either combine or conflate the standing and ripeness analyses. (12) Courts have also vacillated between describing ripeness as a constitutional or a prudential doctrine, indeed, the U.S. Supreme Court has described some of its previous prudential ripeness cases as addressing constitutional ripeness instead. (13) This Chapter argues that ripeness is not a constitutional doctrine based in Article III. Rather, it is a prudential doctrine intended to avoid "premature abdication" and "protect the agencies from judicial interference" before the facts warrant it. (14) What courts sometimes call constitutional ripeness is nothing more than the concrete injury component of standing.

    This conflation is dangerous because constitutional and prudential limitations do not have the same power. Constitutional limits on the jurisdiction of federal courts cannot be waived or altered, save by a constitutional amendment; prudential limitations, however, may be waived by the parties, disregarded by the court, or removed by Congress. (15) Further, the Supreme Court has recently cast doubt on whether prudential doctrines can ever prevent review of a case within the jurisdiction of federal courts. (16) Because ripeness is a prudential, rather than constitutional, doctrine, courts should be careful to analyze standing and ripeness separately. Currently, they do not do so. (17)

    The Ninth Circuit recently dealt with the sources of standing and ripeness in Montana Environmental Information Center v. Stone-Manning (Montana). (18) The Montana plaintiffs sought an injunction to force the director of the Montana Department of Environmental Quality to comply with pre-existing standards for approving mining permits, alleging a pattern of behavior that showed a failure to follow those standards. (19) In affirming the district court's dismissal, the Ninth Circuit concluded that the plaintiffs lacked standing and that their claims were not ripe, ascribing ripeness to the Article III limitation on federal jurisdiction. (20) This Chapter uses Montana as a lens to examine the elision of standing and ripeness in the Ninth Circuit. The Ninth Circuit should abandon the tripartite structure that it currently employs standing, constitutional ripeness, and prudential ripeness--and instead recognize only two doctrines: an Article III standing doctrine and a prudential ripeness doctrine.

    Part II examines the Ninth Circuit's treatment of standing and ripeness, exploring the frequency with which the Ninth Circuit fails to separate the standing and ripeness analyses. It also examines what authority the court typically cites for the ripeness doctrine to explore whether that authority is constitutional or prudential. Part III demonstrates that what federal courts call constitutional ripeness is nothing more than the injury-in-fact requirement for Article III standing, while prudential ripeness encompasses the balancing of fitness for review and hardship to the parties typically understood as ripeness. Finally, Part IV looks to the future of the prudential ripeness doctrine in light of recent Supreme Court precedent. This Chapter confines its scope to environmental cases against federal agencies, rather than examining the full gamut of possible environmental litigation.


    In environmental law, as well as more broadly, the notion of "justiciability"--whether the court can decide a case--encompasses many concepts. (21) While some concepts are explicitly constitutional, like standing, (22) some exist in a murky area between constitutional and prudential, like ripeness. (23) To bring a justiciable case, environmental plaintiffs must carefully plead their complaints to include allegations that satisfy the ever-shifting boundaries of standing and ripeness. (24) These are ill-defined boundaries to start with, and the nature of environmental cases, in which the hurdles to standing and ripeness are higher, makes it still harder to match those boundaries. (25) In the Ninth Circuit, where the courts have repeatedly conflated standing and ripeness, the two doctrines often operate together to bar environmental suits. (26) That conflation, however, does not mean that the two doctrines are the same or have the same legal origin.

    1. Ripeness: "Standing on a Timeline" or Prudential?

      Over the last twenty years, the Ninth Circuit has adopted a view of ripeness that explicitly links it to Article III. Sitting en banc, the court described ripeness as "standing on a timeline." (27) Most recently, particularly in the environmental context, the Ninth Circuit has explicitly distinguished between constitutional ripeness and prudential ripeness, suggesting that they have separate legal sources. (28) Of course, not every court that addresses ripeness explains which type of ripeness it means. (29) The failure to distinguish clearly between constitutional ripeness, prudential ripeness, and standing contributes to ongoing confusion. (30)

      The basic premise behind ripeness as an Article III doctrine is simple: a dispute is ripe in the constitutional sense if the injury is "concrete." (31) The confusion arises because standing, constitutional ripeness, and prudential ripeness all speak to this question to varying extents. (32) Constitutional ripeness overlaps with the ii\jury-in-fact requirement of standing, (33) while prudential ripeness addresses the timing of cases in which there is already an injury, but the issues may be better presented at a later date. (34) In the Ninth Circuit, courts regularly conflate these questions when deciding environmental cases. (35)

    2. Data on the Conflation of Standing and Ripeness in the Ninth Circuit's Environmental Law Cases

      To examine the Ninth Circuit's elision of standing and ripeness in environmental law, I reviewed the forty-seven environmental cases in which the Ninth Circuit addressed both standing and ripeness. (36) The first such case appeared in 1980 and began the Ninth Circuit's pattern of merging the standing and ripeness analyses, which continues through the present. (37)

      1. Combining the Standing and Ripeness Analyses

        Approaches to standing and ripeness analyses may shift over time. As a result, a court's statement that it has applied a standing or ripeness framework does not always fully describe the court's underlying action. For example, a court might hold that a case is unripe because the plaintiffs failed to show "practical harm" in the absence of a court decision; (38) while the court framed its analysis as one of ripeness, the same underlying facts would also raise serious standing questions. In the cases discussed below, the Ninth Circuit explicitly referenced both standing and ripeness.

        The review of Ninth Circuit environmental cases revealed that the court analyzed standing and ripeness separately in 47% of cases--twenty-two out of forty-seven--and combined the analyses in 53%--twenty-five out of forty-seven. (39) In some of these combined cases, the court thoroughly analyzed one requirement and added a footnote to that discussion with a statement that the parties had met the other requirement as well. (40) In other cases, the court explicitly stated that the two issues merged into a single inquiry. (41) And in still other cases, the court combined...

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