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September 16, 2015  |  Written by Jason T. Canger

Ninth Circuit Courts Refine Rules on Environmental Groups’ Standing

In August 2015, the Ninth Circuit Court of Appeals and the Federal District Court for the Northern District of California each issued decisions addressing the standing of environmental organizations to bring suit.  The cases are the latest in a string of standing decisions issued this year by courts in the Ninth Circuit, reinforcing the continuing development and relevance of the issue for plaintiffs alleging environmental injuries.

Basic Standing Principles

The jurisdiction of the federal courts is limited to disputes determined to be “cases and controversies” arising under Article III of the United States Constitution (Article III).  Standing is one of several judicial doctrines designed to ensure that plaintiffs satisfy this requirement.  In order to have standing, a plaintiff must show that he suffered an “injury in fact” that is concrete and particularized (personal to the plaintiff) and actual and imminent (not hypothetical or conjectural); the injury is fairly traceable to the challenged conduct of the defendant; and it is likely, rather than merely speculative, that the injury will be redressed by a favorable court decision.  Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).  Associations have standing to represent their members’ interests when alleging at least one member would have standing in his own right.  Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).  In addition to Article III, plaintiffs must satisfy certain prudential limitations, including the “zone of interests” test, which requires that a plaintiff’s grievance fall within the zone of interests protected by the statutory provision invoked in the suit.  Bennett v. Spear, 520 U.S. 154, 162 (1997).

WildEarth Guardians v. United States Dep’t of Agriculture

In WildEarth Guardians v. United States Dep’t of Agric., No. 13-16071, 2015 U.S. App. LEXIS 13485 (9th Cir. Aug. 3, 2015), the Ninth Circuit addressed a challenge involving compliance with the National Environmental Policy Act (NEPA) by the United States Department of Agriculture (USDA).  NEPA generally requires that federal agencies prepare an environmental impact statement (EIS) prior to taking action that may have significant environmental impacts.  An environmental assessment (EA) is commonly prepared to determine whether there are potentially significant impacts such that an EIS is required.  In 2011, the USDA issued a new programmatic EA for a nationwide predator management program that made use of information from a programmatic EIS that had been prepared in 1994.  WildEarth Guardians (WildEarth) filed suit under the Administrative Procedure Act alleging that the USDA violated NEPA by failing to update the programmatic EA with more recent research on the program’s impacts and, thus, that the USDA had acted arbitrarily and capriciously.

In response, the USDA challenged WildEarth’s standing, alleging that the environmental organization failed to demonstrate that any of its members suffered a concrete, redressable harm.  The federal district court granted the USDA’s motion to dismiss, but the Ninth Circuit reversed on appeal.  The appellate court explained that when alleging a procedural injury, such as a NEPA violation, the plaintiff must show the procedures in question are designed to protect some threatened concrete interest specific to the plaintiff.  The court found WildEarth claimed a sufficient procedural injury when one of its members declared the USDA’s failure to supplement the programmatic EA with more recent information regarding the impacts of the management program, which lessened his ability to recreationally enjoy and aesthetically view certain wildlife in Nevada.

The Ninth Circuit also found that once plaintiffs sufficiently establish a procedural injury, they are held to relaxed standards of causation and redressability.  To establish causation under this relaxed standard, a plaintiff must show only that he has a procedural right that, if exercised, could protect his concrete interest.  The court found WildEarth sufficiently satisfied this requirement by demonstrating that its members’ recreational and aesthetic interests could have been protected had the USDA incorporated the more recent information regarding the management program’s wildlife impacts.  To satisfy the relaxed redressabilty standard, a plaintiff must show that requiring the agency to follow the correct procedures may influence its ultimate decision.  Without significant discussion, the court found that updating the programmatic EA could have influenced the USDA’s management program in Nevada.

The court also considered WildEarth’s standing to challenge the adequacy of the USDA’s Nevada-specific EA.  The district court had found that the Nevada Department of Wildlife would continue to implement a similar management program even if the USDA decided to stop its program in Nevada, and thus the court would not be able to redress WildEarth’s injury.  The Ninth Circuit dismissed this line of reasoning, explaining that the existence of multiple causes of an injury does not defeat redressability.

Ctr. for Biological Diversity v. United States DOI

In Ctr. for Biological Diversity v. United States DOI, No. 15-cv-00658-JCS, 2015 U.S. Dist. LEXIS 112974 (N.D. Cal. Aug. 24, 2015), the district court addressed whether the Center for Biological Diversity (CBD) had standing to challenge the United States Fish and Wildlife Service’s (USFWS) failure to consult under Section 7 of the Endangered Species Act (ESA) with the United States Environmental Protection Agency (USEPA).  Among other things, Section 7 requires a federal agency proposing an action with the potential to affect listed species ensure that its actions not jeopardize the species or adversely affect designated critical habitat.  The action agency is obliged to consult with the USFWS (as relevant here) and obtain the USFWS’s biological opinion on whether the action would likely have such impacts, and if so, whether there are reasonable and prudent alternatives to avoid such impacts.  In 2009, the USEPA requested consultation with the USFWS on the registration of certain pesticides with respect to their impact on certain listed species; however, the USFWS failed to consult for six years.

The CBD filed suit against the USFWS alleging the agency failed to timely consult with the USEPA on the registration of certain pesticides in violation of Section 7(b)(1), which requires consultations be completed in 90 days.  In response, both the USFWS and a pesticide association, CropLife (collectively “defendants”), challenged CBD’s standing, arguing that CBD’s suit should be barred by the prudential standing limitation requiring CBD’s claim to be within the “zone of interests” protected by Section 7(b)(1).  Defendants’ argued that the provision was meant to ensure timely consultations for the benefit of license applicants, such as CropLife’s members.

The Northern District of California held CBD had sufficient standing to maintain its suit.   The court found that the “zone of interests” test is not meant to be demanding and should bar suit only when plaintiff’s interests are marginally related to or inconsistent with the purpose of the statutory provision.  The court found that CBD’s procedural claims, although brought under a provision that does not expressly recognize the interests of third-party environmental organizations, is arguably within the zone of interests of the provision at issue because the 90-day deadline ultimately furthers the ESA’s substantive goals of species protection.

CropLife also argued that CBD lacked standing because the procedural right it sought to enforce was not linked to any concrete interest and, thus, the CBD had failed to satisfy the “injury in fact” requirement for Article III standing.  The court, however, found that CDB’s complaint included sufficient allegations supporting its members’ interest in the listed species to satisfy the “injury in fact” requirement.  The court also found that CBD satisfied the causation requirement for its alleged procedural injury because the USFWS’s failure to consult with the USEPA resulted in the consulting agency not studying the effects of the pesticides on the listed species and, in turn, failed to identify whether certain reasonable and prudent alternatives might be necessary to protect the species against jeopardy.

Conclusion

Resolution of standing challenges under Article III, and relevant prudential limitations, remain active issues in Ninth Circuit courts, with parties continuing to litigate new and novel aspects of their opponents’ standing.  As such, the Ninth Circuit’s standing jurisprudence is expected to continue to grow in environmental and other types of cases.

For more information on recent environmental decisions issued by courts of the Ninth Circuit Court of Appeals, please contact Jason Canger at jcanger@somachlaw.com.

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