[*] OF COUNSEL, VAN NESS FELDMAN, WASHINGTON, D.C. ADJUNCT PROFESSOR OF LAW, UNIVERSITY OF BALTIMORE SCHOOL OF LAW. OFFICE OF THE SOLICITOR, DEPARTMENT OF THE INTERIOR, 1994-1996. B.A., CLARK UNIVERSITY, 1980; J.D., WASHINGTON UNIVERSITY SCHOOL OF LAW, 1984. I WOULD LIKE TO THANK THE PARTICIPANTS IN MY ENVIRONMENTAL LAW SEMINAR IN THE SPRING OF 1997, AS WELL AS MANY OTHERS WHO PROVIDED COMMENTS AND INSIGHTS, PARTICULARLY STEVE DAVISON. NEEDLESS TO SAY, HOWEVER, THE VIEWS EXPRESSED IN THIS ARTICLE, INCLUDING ANY ERRORS OR OMISSIONS, ARE SOLELY THOSE OF THE AUTHOR. Return to text.

[1] Sierra Club v. Morton, 405 U.S. 727, 760 n.2 (1972) (Blackmun, J., dissenting) (quoting JOHN DONNE, DEVOTIONS XVII). Return to text.

[2] See Joseph L. Sax, Standing to Sue: A Critical Review of the Mineral King Decision, 13 NAT. RESOURCES J. 76, 82 (1973) (observing, shortly after the Court adopted its current approach, that the "user equals standing" test was doomed to fail). Return to text.

[3] JOSEPH VINING, LEGAL IDENTITY: THE COMING OF AGE OF PUBLIC LAW 1 (1978). Return to text.

[4] Id. Return to text.

[5] 117 S. Ct. 1154 (1997), rev'g Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995). Return to text.

[6] See id. at 1161. Return to text.

[7] See Bennett, 117 S. Ct. at 1161; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-71 (1992); see also infra note 150 and accompanying text. Return to text.

[8] See Defenders of Wildlife, 504 U.S. at 561-62. Return to text.

[9] Administrative Procedure Act, 5 U.S.C. § 702 (1994). Return to text.

[10] Id. Return to text.

[11] Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 399 (1987). Return to text.

[12] Bennett, 117 S. Ct. at 1161. That the zone of interests test reflects the Court's interpretation of section 10 of the APA is not necessarily consistent with the Court's other statements that the test applies to constitutional guarantees and that it serves to ensure a proper role for the judiciary in a democratic society. See id. Although the Clarke Court arguably suggested limiting the test to instances where it appropriately applied (in cases under the APA), see 479 U.S. at 400 n.16, the Court in Bennett exhibited no such tendency. Return to text.

[13] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-47 (1994). Return to text.

[14] Endangered Species Act, 16 U.S.C. §§ 1531-44 (1994). Return to text.

[15] Two of the more recent and better articles discussing standing are David Sive, Environmental Standing, NAT. RESOURCES & ENV'T, Fall 1995, at 49, and Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992); see also Beth Brennan & Matt Clifford, Standing, Ripeness, and Forest Plan Appeals, 17 PUB. LAND & RESOURCES L. REV. 125 (1996); Martha Colhoun & Timothy S. Hamill, Environmental Standing in the Ninth Circuit: Wading Through the Quagmire, 15 PUB. LAND L. REV. 249 (1994); Susan L. Gordon, Recent Developments, The Ninth Circuit Standing Requirements for Environmental Organizations, 13 J. ENERGY NAT. RESOURCES & ENVTL. L. 264 (1993); George K. Pash, Note, NEPA: As Procedure It Stands, As Procedure It Falls: Standing and Substantive Review in Idaho Conservation League v. Mumma, 29 WILLAMETTE L. REV. 365 (1993); Jonathan Poisner, Comment, Environmental Values and Judicial Review After Lujan: Two Critiques of the Separation of Powers Theory of Standing, 18 ECOLOGY L.Q. 335 (1991); Karin P. Sheldon, Lujan v. Defenders of Wildlife: The Supreme Court's Slash and Burn Approach to Environmental Standing, 23 Envtl. L. Rep. (Envtl. L. Inst.) 10,031 (1993). For older articles, see Raoul Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement?, 78 YALE L.J. 816 (1969); Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 HARV. L. REV. 297 (1979); William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221 (1988); Louis L. Jaffe, Standing Again, 84 HARV. L. REV. 633 (1971); Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968); Henry P. Monaghan, Third Party Standing, 84 COLUM. L. REV. 277 (1984); Gene R. Nichol, Jr., Rethinking Standing, 72 CAL. L. REV. 68 (1984); Michael A. Perino, Comment, Justice Scalia: Standing, Environmental Law, and the Supreme Court, 15 B.C. ENVTL. AFF. L. REV. 135 (1987); Bruce Teicher, Note, Informational Injuries as a Basis for Standing, 79 COLUM. L. REV. 366 (1979); Mark V. Tushnet, The New Law of Standing: A Plea for Abandonment, 62 CORNELL L. REV. 663 (1977); Stephen L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371 (1988). Return to text.

[16] See generally Sunstein, supra note 15, at 183-85. Return to text.

[17] See Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432, 1434-40 (1988). Sunstein traces the development of the law of standing, describing its fairly recent origins and how the emergence of the New Deal regulatory state influenced its development. Return to text.

[18] Id. at 1435 (footnote omitted). Return to text.

[19] See id. at 1441-44. Kenneth Culp Davis, Louis L. Jaffe and others debated the appropriate limits for standing in public actions, and Cass Sunstein and William Fletcher each have traced this debate. See Fletcher, supra note 15; Sunstein, supra note 15; Sunstein, supra note 17; cf. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976) (a later influential article discussing public law litigation). Return to text.

[20] See Administrative Procedure Act, 5 U.S.C. §§ 551-559 (1994). Return to text.

[21] 397 U.S. 150 (1970).

22> 397 U.S. 159 (1970). Return to text.

[23] Data Processing, 397 U.S. at 152-54; see Barlow, 397 U.S. at 164; see also infra notes 41, 72-74 and accompanying text. The Data Processing and Barlow decisions abandoned the old "legal interest" test, which "represented not simply an incremental development, but a shift in the axioms of legal thinking." VINING, supra note 3, at 39. Return to text.

[24] Martin M. Shapiro, Prudence and Rationality Under the Constitution, in THE CONSTITUTION AND THE REGULATION OF SOCIETY 213, 220 (Gary C. Bryner & Dennis L. Thompson eds., 1988). "Beginning in the mid-fifties and rapidly accelerating in the sixties and seventies . . . Congress and the courts came to fear that agency experts were being 'captured' by special-interest groups and turning out rules that favored those special interests over the public interest." Id. For instance, Justice Douglas opined that federal agencies "are notoriously under the control of powerful interests who manipulate them through advisory committees, or friendly working relations, or who have that natural affinity with the agency" that develops over time. Sierra Club v. Morton, 405 U.S. 727, 745 (1972) (Douglas, J., dissenting). According to Professor Sunstein, however, the concern over regulatory capture "should not be overdrawn." Sunstein, supra note 15, at 184. Sunstein observed that "[t]he empirical literature did not establish a systematic risk of administrative abdication, and it did not demonstrate that regulated industries are always in a better position to influence government than beneficiaries." Id. See generally WILLIAM L. CARY, POLITICS AND THE REGULATORY AGENCIES (1967); LOUIS M. KOHLMEIER, JR., THE REGULATORS: WATCHDOG AGENCIES AND THE PUBLIC INTEREST (1969); JERRY L. MASHAW, DUE PROCESS IN THE ADMINISTRATIVE STATE (1985). Return to text.

[25] A. Dan Tarlock, Environmental Law, But Not Environmental Protection, in NATURAL RESOURCES POLICY AND LAW: TRENDS AND DIRECTIONS 162, 170-71 (Lawrence J. MacDonnell & Sarah F. Bates eds., 1993) (citing JOSEPH SAX, DEFENDING THE ENVIRONMENT: A STRATEGY FOR CITIZEN ACTION (1971)). Return to text.

[26] See id. Return to text.

[27] Courts generally rejected qui tam lawsuits, similar to public attorney general actions, seeking injunctive relief and criminal penalties for violations of section 13 of the Rivers and Harbors Act. See Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. §§ 401-418 (1994). This Act prohibits the discharge of refuse into navigable waters and tributaries, as well as the deposit of material on the banks of navigable waters, when navigation may be impeded or obstructed. See Refuse Act of 1899, 33 U.S.C. § 407 (1994). See, e.g., Gerbing v. I.T.T. Rayonier, Inc., 332 F. Supp. 309 (M.D. Fla. 1971); Lavagnino v. Porto-Mix Concrete, Inc., 330 F. Supp. 323 (D. Colo. 1971); Bass Angler Sportsman Soc'y v. United States Steel Corp., 324 F. Supp. 412 (D.C. 1971); United States v. St. Regis Paper Co., 328 F. Supp. 660, 665 (W.D. Wis. 1971) (awarding then Chairman of the Subcommittee on Conservation and Natural Resources "informer fees"); Guthrie v. Alabama By-Products Co., 328 F. Supp. 1140, 1146-47 (N.D. Ala. 1971), aff'd, 456 F.2d 1294 (5th Cir. 1972); Reuss v. Moss-American, Inc., 323 F. Supp. 848 (E.D. Wis. 1971).

Congress raised the possibility of private citizens bringing qui tam actions in a pamphlet published in 1970, entitled Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution, H.R. Rep. No. 91-917. See United States v. Florida-Vanderbilt Dev. Corp., 326 F. Supp. 289, 290 (S.D. Fla. 1971) (discussing congressional report); see also United States v. Northwest Paper Co., 327 F. Supp. 87, 89 (D. Minn. 1971) (citing to "Congressional Committee Print of 'Qui Tam Actions and the 1899 Refuse Act: Citizen Lawsuits Against Polluters of the Nation's Waterways,' House Committee on Government Operations, Sub committee on Conservation of Natural Resources," 91st Cong., 2d Sess. (1970)); Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 325 F. Supp. 728, 736 (E.D. Ark 1971), aff'd, 470 F.2d 289 (8th Cir. 1972). See generally William H. Rodgers, Jr., Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U. PA. L. REV. 761 (1971). The opportunity for private parties to sue under the Rivers and Harbors Act of 1899 finally became settled in litigation that began in 1971 with Sierra Club v. Morton, 400 F. Supp. 610 (N.D. Calif. 1975), when the Supreme Court treated the issue as one involving private rights of action and then rejected it. See California v. Sierra Club, 451 U.S. 287 (1981). For a history of qui tam actions in general, see Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341 (1989). Return to text.

[28] 42 U.S.C. §§ 4321-4347. See generally Dinah Bear, The National Environmental Policy Act: Its Origins and Evolutions, NAT. RESOURCES & ENV'T, Fall 1995, at 3. For a complete discussion of NEPA and the EIS requirement, see Paul S. Weiland, Amending the National Environmental Policy Act: Federal Environmental Protection in the 21st Century, 12 J. LAND USE & ENVTL. LAW 275 (1997). Return to text.

[29] 33 U.S.C. § 407. Return to text.

[30] Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. §§ 1251-1387 (1994). See generally Sam Kalen, Commerce to Conservation: The Call for a National Water Policy and the Evolution of Federal Jurisdiction over Wetlands, 69 N.D. L. REV. 873, 883-86 (1993) (discussing the permitting program); Rodgers, supra note 27; James T. B. Tripp & Richard M. Hall, Federal Enforcement Under the Refuse Act of 1899, 35 ALB. L. REV. 60 (1970). Return to text.

[31] Clean Air Amendments of 1970 § 304, Pub. L. No. 91-604, 84 Stat. 1676, 1706 (1970) (codified as amended at 42 U.S.C. § 7604) (1994)). See Sive, supra note 15, at 51 (describing the events leading to inclusion of the citizen suit provision in the Clean Air Act). "The statutory scheme may be traced to an idea originally proposed by Professor Sax and first embodied in the Michigan Environmental Protection Act of 1970." Grant P. Thompson, The Role of the Courts, in FEDERAL ENVIRONMENTAL LAW 192, 230 (Erica L. Dolgin & Thomas G. P. Guilbert eds., 1974). For a discussion of early experience under the Michigan statute, see Joseph L. Sax & Roger L. Conner, Michigan's Environmental Protection Act of 1970: A Progress Report, 70 MICH. L. REV. 1004 (1972). Return to text.

[32] See, e.g., 42 U.S.C. § 6972 (citizen suit provision of the Solid Waste Disposal Act); 42 U.S.C. § 9659(a) (citizen suit provision of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980); 42 U.S.C. § 11046 (citizen suit provision of the Emergency Planning and Community Right-to-Know Act of 1986); 42 U.S.C. § 300j-8 (citizen suit provision of the Safe Drinking Water Act); 33 U.S.C. § 1365 (citizen suit provision of the CWA); 30 U.S.C. § 1270 (citizen suit provision of the Surface Mining Control and Reclamation Act of 1977); 16 U.S.C. § 1540(g) (citizen suit provision of the ESA). See generally Harold Feld, Saving the Citizen Suit: The Effect of Lujan v. Defenders of Wildlife and the Role of Citizen Suits in Environmental Enforcement, 19 COLUM. J. ENVTL. L. 141, 146-48 (1994) (discussing the legislative history of citizen suit provisions). Return to text.

[33] Of course, all this occurred just as the modern environmental movement began to grow. See generally ROBERT GOTTLIEB, FORCING THE SPRING: THE TRANSFORMATION OF THE AMERICAN ENVIRONMENTAL MOVEMENT 117-61 (1993); KIRKPATRICK SALE, THE GREEN REVOLUTION: THE AMERICAN ENVIRONMENTAL MOVEMENT 1962-1992 (1993); Robert Cameron Mitchell, From Conservation to Environmental Movement: The Development of the Modern Environmental Lobbies, in GOVERNMENT AND ENVIRONMENTAL POLITICS: ESSAYS ON HISTORICAL DEVELOPMENT SINCE WORLD WAR TWO 81 (Michael J. Lacey ed., 1989). Return to text.

[34] See generally CONGRESSIONAL QUARTERLY INC., THE BATTLE FOR NATURAL RESOURCES 56 (1983). Return to text.

[35] See, e.g., Virginia F. Coleman, Possible Repercussions of the National Environmental Policy Act of 1969 on the Private Law Governing Pollution Abatement Suits, 3 NAT. RESOURCES LAW. 647 (1970); Eva H. Hanks & John L. Hanks, An Environmental Bill of Rights: The Citizen Suit and the National Environmental Policy Act of 1969, 24 RUTGERS L. REV. 230 (1970). More recently, Nicholas Yost described how NEPA ought to be construed to include a substantive mandate and how two of the first cases involving NEPA suggested such an approach. See Nicholas C. Yost, NEPA's Promise—Partially Fulfilled, 20 ENVTL. L. 533, 536-37 (1990) (discussing Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970) and Calvert Cliffs' Coordinating Comm., Inc. v. United States Atomic Energy Comm'n, 449 F.2d 1109 (D.C. Cir. 1971)). As David Sive explains, standing during the first 20 years after NEPA was not perceived as a serious obstacle, as long as plaintiffs could demonstrate harm from an identifiable governmental action affecting a limited geo graphic area and the harm had some environmental component. See Sive, supra note 15, at 53-54; see also infra note 96. Return to text.

[36] In a 1965 case, a coalition of local groups and members challenged the Federal Power Commission's (FPC, now the Federal Energy Regulatory Commission) decision to license a pumped storage hydroelectric project on the top of Storm King Mountain, a scenic area on the northern entrance to the Hudson River Gorge. See Scenic Hudson Preservation Conference v. Federal Power Comm'n, 354 F.2d 608, 611 (2d Cir. 1965). One of the principal questions in Scenic Hudson was whether, under the Federal Power Act (FPA), 16 U.S.C. §§ 791-828c, the Commission should have considered the environmental impact of the project as well as whether gas turbines might serve as an alternative power source to a pumped storage project. See Scenic Hudson, 354 F.2d at 613. Section 313(b) of the FPA authorized judicial review for any party to a proceeding before the FPC who is aggrieved by an order of the Commission. See 16 U.S.C. § 825l(b). The Second Circuit held that the plaintiffs had standing because they were aggrieved by an order of the FPC and that the FPC should have engaged in a more thorough review. See Scenic Hudson, 354 F.2d at 616. The court also observed that the plaintiffs had an economic interest because of a transmission line for the proposed project, as well as the proposed flooding of one of the plaintiff members' trailways. See id. The Scenic Hudson decision was supported by decisions from the seventh and ninth circuit. See Namekagon Hydro Co. v. Federal Power Comm'n, 216 F.2d 509 (7th Cir. 1954); State of Washington Dep't of Game v. Federal Power Comm'n, 207 F.2d 391, 395 n.11 (9th Cir. 1953).

Many of the early high profile environmental disputes involved the construction of dams or hydroelectric projects along United States waterways. As one observer notes, "[t]hose dams were now seen by many as illegitimate concrete intrusions into wilderness areas that had their own integrity, their own beauty, and their own rights." SALE, supra note 33, at 18. Indeed, the Storm King litigation spurred the growth of one of the premier environmental litigation groups, the Environmental Defense Fund. See id. at 21; see also Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189, 1298-1301 (1986) (describing the significance of Scenic Hudson). An earlier unsuccessful effort to stop the construction of the Hetch Hetchy dam in Yosemite was described as "the greatest cause célèbre in the early history of the national park movement in the United States." ALFRED RUNTE, NATIONAL PARKS: THE AMERICAN EXPERIENCE 79 (2d ed. 1987). Yet, the subsequent battle to block the Echo Park dam in Dinosaur National Monument was successful. See JON M. COSCO, ECHO PARK: STRUGGLE FOR PRESERVATION (1995); see also JOHN D. ECHEVERRIA ET AL., RIVERS AT RISK: THE CONCERNED CITIZEN'S GUIDE TO HYDROPOWER (1989) (instructing citizens and communities on how to preserve free-flowing rivers from hydropower development). However, the effort to stop the Glen Canyon Dam in court was dismissed due to a lack of standing. See National Parks Ass'n v. Udall, Civ. No. 3904-62 (U.S. Dist. Ct. 1962); see also COSCO, supra at 98-99. Return to text.

[37] Associated Indus. of New York State, Inc. v. Ickes, 134 F.2d 694, 708-10 (2d Cir. 1943), vacated as moot, 320 U.S. 707 (1943). Return to text.

[38] 7 U.S.C. § 135-135k (1964). Return to text.

[39] Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1096 (D.C. Cir. 1970). Return to text.

[40] Id. at 1097; see also Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 325 F. Supp. 728, 734 (E.D. Ark. 1971), aff'd, 470 F.2d 289 (8th Cir. 1972); Road River League, Town of Bedford v. Boyd, 270 F. Supp. 650, 660-61 (S.D.N.Y. 1967) (discussing and adopting the reasoning in Scenic Hudson). Return to text.

[41] See Kenneth Culp Davis, The Liberalized Law of Standing, 37 U. CHI. L. REV. 450, 450 (1970). The four cases were Barlow v. Collins, 397 U.S. 159 (1970); Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970); Flast v. Cohen, 392 U.S. 83 (1968); and Hardin v. Kentucky Util. Co., 390 U.S. 1 (1968). According to Davis, Data Processing and Barlow:

superseded a large batch of law that was built on such doctrine as that of the [Kansas City Power & Light Co. v. McKay, 225 F.2d 924 (D.C. Cir. 1954)] case that something in the nature of a "legal right" or "legal interest" was necessary for standing. That shift is a great accomplishment and it deserves strong emphasis, for federal law of standing now has a new and better orientation.

Of course it is true that the grant of standing must be carefully controlled by the exercise of judicial discretion in order that completely frivolous lawsuits will be averted. There must be a practical separation of the meritorious sheep from the capricious goats—a recognition that cucullus non facit monachum. However, responsible federal judges will be able to discern a case in which there is injury in fact, a sufficient adversary interest to constitute a case or controversy under Article III, and an otherwise reviewable subject matter to prevent the dockets from becoming overcrowded.

[42] See Davis, supra note 41, at 450. Return to text.

[43] 405 U.S. 727 (1972). Return to text.

[44] Only three other Justices joined Justice Stewart's opinion. Justices Powell and Rehnquist did not participate in the consideration or decision of the case, and Justices Douglas, Brennan and Blackmun dissented. Return to text.

[45] The Court specifically declined to comment on the application of the zone of interests test to the facts of the case. See Sierra Club, 405 U.S. at 733 n.5. Return to text.

[46] See id. at 734-36. Return to text.

[47] Id. at 738 (emphasis added). Return to text.

[48] Id. at 736. For a critique of Sierra Club, see generally Sax, supra note 2. Return to text.

[49] Most of the factual discussion is taken from Note, Mineral King Valley: Who Shall Watch the Watchmen?, 9 PUB. LAND & RESOURCES L. DIG. 173 (1971), reprinted from 25 RUTGERS L. REV. 103 (1970) [hereinafter Mineral King Valley]. Justice Douglas referred to this Note in his dissenting opinion. See Sierra Club, 405 U.S. at 743 n.5 (Douglas, J., dissenting). See also JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS 67-70 (1980) (discussing the reasons for the Sierra Club's lawsuit). Return to text.

[50] Although part of the national forest, the Mineral King Valley was designated as a game refuge. See 16 U.S.C. § 45f. Return to text.

[51] The Forest Service had solicited bids in the 1940s, but to no avail. Responding to inquiries by Walt Disney Productions, the Forest Service again solicited bids in 1965. Mineral King Valley, supra note 49, at 178. Return to text.

[52] See id. at 180-81. Return to text.

[53] See id. Return to text.

[54] See id. at 182. Return to text.

[55] See id. Return to text.

[56] See id. at 190. Return to text.

[57] See Sierra Club v. Hickel, 433 F.2d 24 (9th Cir. 1970), aff'd sub nom., Sierra Club v. Morton, 405 U.S. 727 (1972). Return to text.

[58] See Sierra Club, 433 F.2d at 28. Return to text.

[59] See supra notes 37-42 and accompanying text; see also infra note 80. The Sierra Club alleged that it was a non-profit organization, with approximately 78,000 members nationally, of whom 27,000 resided in the San Francisco Bay area, and that the organization had a special interest in the protection of the national parks and forests. See Sierra Club, 433 F.2d at 29. This interest would be "vitally affected by the acts . . . described and [it] would be aggrieved by" the challenged federal actions. Id. Return to text.

[60] Citizens Committee for the Hudson Valley v. Volpe, 425 F.2d 97, 105 (2d Cir. 1970). David Sive, one of the leading experts on the law of standing and a champion of modern environmental law, represented the plaintiffs in this case. See Sive, supra note 15, at 52. See generally David Sive, Some Thoughts of an Environmental Lawyer in the Wilderness of Administrative Law, 70 COLUM. L. REV. 612 (1970) (reviewing administrative rulings in the field of environmental law). Return to text.

[61] See Sierra Club, 433 F.2d at 30. In addition to Scenic Hudson, Judge Trask distinguished Office of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966); Powelton Civic Home Owners Ass'n v. Department of Hous. and Urban Dev., 284 F. Supp. 809 (E.D. Pa. 1968); and Road Review League v. Boyd, 270 F. Supp. 650 (S.D.N.Y. 1967). See Sierra Club, 433 F.2d at 30. Return to text.

[62] Although he distinguished Judge Moore's case by noting that there the litigants were users of the affected area, Judge Trask nevertheless opposed broadly applying the private attorney general theory. The private attorney general concept, according to Judge Trask, is limited to instances where Congress has authorized parties to bring suit to prevent unlawful actions. See Sierra Club, 433 F.2d at 33 n.9. Of course, in Hudson Valley, like the Sierra Club, the parties sought review under the APA. See Hudson Valley, 425 F.2d at 100. Elsewhere in his opinion, Judge Trask indicated that the APA did not itself provide a right to review, "absent judicially articulated notions of 'legal wrong' of adversely affected or aggrieved . . . within the meaning of any relevant statute." Sierra Club, 433 F.2d at 32 (quoting Judge Burger's concurring opinion in National Ass'n of Sec. Dealers, Inc. v. SEC, 420 F.2d 83, 101 (D.C. Cir. 1969), rev'd, 401 U.S. 617 (1971)). Earlier, in United Church of Christ, Judge (later Chief Justice) Burger had considered whether a public consumer seeking to intervene in a proceeding before the Federal Communications Commission had standing. See United Church of Christ, 359 F.2d at 997. There, Judge Burger rejected limiting standing only to those with an economic interest and allowed the consuming public the opportunity to participate during the agency's decision making process, emphasizing the need for and role of public participation. See id. at 999-1000. This opinion should be compared to Burger's concurring opinion and the majority opinion in National Ass'n of Securities Dealers, Inc., 420 F.2d 83 (D.C. Cir. 1969), which together illustrate the influence of Louis Jaffe and the debate over how to explain and at the same time limit standing in a public litigation model. Return to text.

[63] Sierra Club, 433 F.2d at 32. Here, Judge Trask quoted from Black's Law Dictionary that an aggrieved person is one that has suffered a loss or injury. See id. at 32 n.8. In a concurring opinion, Judge Hamley stated that he would have granted the Sierra Club standing. See id. at 38 (Hamley, J., concurring). Judges Hamley and Trask had this same difference of opinion over standing a year later. See Alameda Conservation Ass'n v. California, 437 F.2d 1087 (9th Cir. 1971). In fact, in Alameda Conservation Ass'n, a majority of the court granted standing to a wider class of plaintiffs than Judge Trask would have. Judge Trask expressed concern over expanding the realm of parties entitled to bring lawsuits. See id. at 1090-93. In Environmental Defense Fund, Inc. v. United States Army Corps of Engineers, 325 F. Supp. 728 (E.D. Ark. 1971), aff'd, 470 F.2d 289 (8th Cir. 1972), the court opted to follow the concurrences in Alameda Conservation Ass'n rather than Judge Trask's opinion, reasoning that the underlying rationale of Data Processing suggests that organizational plaintiffs with an interest in protecting the environment have standing. See id. For a critique of the Ninth Circuit's decision in Sierra Club, see Mineral King Valley, supra note 49, at 198-200; Recent Development, Conservation Group Refused Standing to Contest Agency Action Which Would Affect National Park—Sierra Club v. Hickel, 46 N.Y.U. L. REV. 177 (1971). Return to text.

[64] See Sierra Club v. Morton, 405 U.S. 727, 731 (1972). Return to text.

[65] See id. Return to text.

[66] 369 U.S. 186 (1962). Return to text.

[67] Sierra Club, 405 U.S. at 732. In Baker, the Court began its analysis by noting that a federal or state statute could not be invalidated except when adjudicating the "legal rights of litigants in actual controversies." Baker, 369 U.S. at 204. The Court then phrased the question as "[h]ave the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?" Id. The Court concluded that voters had standing to challenge an apportionment scheme that affected them: "They are asserting 'a plain, direct, and adequate interest in maintaining the effectiveness of their votes,''' not merely a claim of "the right possessed by every citizen 'to require that the government be administered according to the law.'" Id. at 208 (citations omitted). The Court, therefore, refers to the "personal stake in the outcome of the controversy" as a way of ensuring that parties are truly adversarial. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38 n.16 (1976) (repeating the concept from Baker); Roe v. Wade, 410 U.S. 113, 123 (1973) (referring similarly to the necessary degree of contentiousness); Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 151-52 (1970) (quoting Flast v. Cohen, 392 U.S. 83 (1968)); see also Laird v. Tatum, 408 U.S. 1, 13 n.7 (1972) (quoting Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166 (1972)). Return to text.

[68] See Sierra Club, 405 U.S. at 732. Return to text.

[69] See id. Return to text.

[70] 5 U.S.C. § 702. Return to text.

[71] Sierra Club, 405 U.S. at 734. Return to text.

[72] 397 U.S. 150 (1970). Return to text.

[73] 397 U.S. 159 (1970). Justice Stewart explained that the injury in fact requirement replaced the old "legal wrong" or "legal interest" test articulated in some older decisions under the APA. See Sierra Club, 405 U.S. at 733; supra notes 23 and 41. Cass Sunstein opined that the Court basically invented the injury in fact test in Data Processing and Barlow, positing that the test comes from Kenneth Culp Davis' interpretation of the APA. See Sunstein, supra note 15, at 185-86. According to Sunstein, Davis misread the APA, overlooking that the "adversely affected or aggrieved" clause is modified by "within the meaning of a relevant statute." Id. at 186. Sunstein argues that this part of section 10(a) of the APA was designed to allow:

People [to] bring suit if they could show that 'a relevant statute'—a statute other than the APA—granted them standing by providing that people 'adversely affected or aggrieved' were entitled to bring suit. In this way, the APA recognized that Congress had allowed people to have causes of action, and hence standing, even if their interests were not entitled to consideration by the relevant agency. Such people could act as "private attorney general . . . ." The APA thus provided for congressional authorization of actions by people lacking legal injuries.

[74] Sierra Club, 405 U.S. at 734. In Data Processing, however, the Court already had endorsed Scenic Hudson's acceptance of noneconomic injury. See Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 154 (1970). Return to text.

[75] Sierra Club, 405 U.S. at 734. Return to text.

[76] See id. at 734-35. Return to text.

[77] Id. at 735 (emphasis added). Return to text.

[78] See id. Return to text.

[79] This analysis further confuses Article III standing with what is required under the APA. See Sunstein, supra note 15, at 186 (noting that similar reasoning in Data Processing failed to address the relationship between Article III and the injury in fact test). Return to text.

[80] Sierra Club, 405 U.S. at 738 (emphasis added). Amici explained, as the Court apparently knew, that the Sierra Club had members who would have satisfied the personalized injury requirement, but the organization refused to rely on those members and instead chose to press the ideological argument against requiring the need for such a showing. See id. at 735 n.8. See also infra note 89. The Sierra Club sought to confirm what other judges recognized:

[Organizations such as the Sierra Club are] non-profit organizations composed of members who have a sincere and vital common interest in protecting those environmental values which they deem to be most important to this, and future, generations of American citizens. It is true that they have no direct private and personal economic interest in the . . . [areas being affected]; but these organizations wish to represent what they deem to be the "public" interest in this river and environs. Each of the organizations has demonstrated its interest in such matters as that represented by this lawsuit.

[81] See Sierra Club, 405 U.S. at 726. Return to text.

[82] See Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Bros. Radio Station, 309 U.S. 470 (1940). Return to text.

[83] See Sierra Club, 405 U.S. at 736-38. Return to text.

[84] See id. at 738 n.13. No statute is specified, but the Court cites to several lower court cases where parties with noneconomic interests challenged various agency decisions. See id. Two of the cases were Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093 (D.C. Cir. 1970), and Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608 (2d Cir. 1965). See Sierra Club, 405 U.S. at 738 n.13. Return to text.

[85] See Sierra Club, 405 U.S. at 738. Return to text.

[86] The Court acknowledges instances where organizations alleging an organizational interest were granted standing, but dismisses those cases by observing that they also involved at least one party or one member of the organization who suffered an individualized injury. See id. at 739 n.14. Return to text.

[87] See id. 739-41. Return to text.

[88] Id. at 740 (emphasis added). Return to text.

[89] Justices Douglas and Blackmun "felt so strongly about their dissents" that they read "them from the bench when the decision was announced." ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE AND POLICY 723 (2d ed. 1996). Justice Brennan attempted to have the case dismissed on the grounds that certiorari had been improvidently granted, but Justice Stewart modified his opinion to allow the Sierra Club to amend its complaint in order to maintain its challenge to proposed activity at Mineral King. See id. (citing to Robert V. Percival, Environmental Law in the Supreme Court: Highlights From the Marshall Papers, 23 ENVTL. L. REP. 10606, 10620 (1993)). See Sierra Club v. Morton, 348 F. Supp. 219 (N.D. Cal. 1972) (allowing plaintiff to amend complaint to allege injury in fact and also to add NEPA count). The lawsuit continued until 1977, when it was finally dismissed without prejudice; the following year Congress made Mineral King part of the Sequoia National Park. See PERCIVAL, supra at 724. Return to text.

[90] See Christopher Stone, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450 (1972). Return to text.

[91] See Sierra Club, 405 U.S. at 741-42. Return to text.

[92] Id. Justice Douglas was not clear in articulating who could serve as the representative for the inanimate object. He suggested that "those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community." Id. at 752. Unfortunately, it may be somewhat unrealistic to assume that those who frequent a place are a homogenous group with similar values and motives. Skiers, for instance, may have different interests than hikers. Who can speak for the inanimate object, therefore, entails a normative judgment, one that presumes knowledge of the interests of the inanimate object. To the extent that Justice Douglas would limit representatives to those who use and know the place, isn't he simply suggesting a similar inquiry as that required by the majority of the Court, albeit for a different reason? Would Justice Douglas' inquiry require examining the motives of the asserted representative of the inanimate object? Would all organizations speak with a similar voice? Whether or not inanimate objects may sue in their own right may not alleviate the issue of who can bring the lawsuit. Cf. Hawksbill Sea Turtle v. Federal Emergency Man agement Agency, No. 96-7662, 1997 U.S. App. LEXIS 26096, at *11 n.2 (3d Cir. Sept. 22, 1997) (discussing whether animals should have standing). Return to text.

[93] See Sierra Club, 405 U.S. at 756-58. Return to text.

[94] See id. at 757-58. Return to text.

[95] See id. at 755. Return to text.

[96] Courts generally found standing without requiring any detailed showing of personalized injury. See, e.g., National Resources Defense Council, Inc. v. EPA, 507 F.2d 905, 910 (9th Cir. 1974); Sierra Club v. Mason, 351 F. Supp. 419, 422-24 (D. Conn. 1972); Citizens For Clean Air, Inc. v. U.S. Army Corps of Eng'rs, 349 F. Supp. 696, 704-06 (S.D.N.Y. 1972). In many of the early cases, standing was not raised as an issue where the litigants lived in the vicinity of the challenged activity. See, e.g., Sierra Club v. Volpe, 351 F. Supp. 1002 (N.D. Cal. 1972). See generally FREDERICK R. ANDERSON, NEPA IN THE COURTS: A LEGAL ANALYSIS OF THE NATIONAL ENVIRONMENTAL POLICY ACT 26-44 (1973) (discussing cases before and immediately after Sierra Club); George Cameron Coggins, Preparing an Environmental Lawsuit: Part II: Doctrinal Barriers and Pre-trial Preparation, 58 IOWA L. REV. 487, 488-92 (1973) (discussing the law of standing in environmental cases and the effect of Sierra Club). Return to text.

[97] 412 U.S. 669 (1973). Return to text.

[98] See id. at 689-90. Return to text.

[99] See id. at 676. Return to text.

[100] See id. Return to text.

[101] See id. at 679. Return to text.

[102] See id. at 689. Return to text.

[103] Id. at 687-88. Return to text.

[104] Id. at 689 n.14. Return to text.

[105] See id. at 688-89. The following year, in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974), Justice Stewart reaffirmed his view that standing will not be "found wanting because an injury has been suffered by many," and distinguished the case from SCRAP "because none of the respondents has alleged the sort of direct, palpable injury required for standing under Art. III." Id. at 229 (Stewart, J., concurring).

106> 497 U.S. 871 (1990). Return to text.

[107] 504 U.S. 555 (1992). Return to text.

[108] See National Wildlife Fed'n, 497 U.S. at 875. Return to text.

[109] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1782 (1994). Return to text.

[110] See National Wildlife Fed'n, 497 U.S. at 875. Return to text.

[111] See id. at 879-82. Return to text.

[112] The Court held that the plaintiffs easily satisfied the zone of interests test for their claims under NEPA and FLPMA. However, Justice Scalia offered the following example of how the test might apply to preclude standing:

[T]he failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be "adversely affected within the meaning" of the relevant statute.

[113] See id. at 885. Return to text.

[114] Id. at 896. Return to text.

[115] Id. Return to text.

[116] See id. at 887-88. Return to text.

[117] See id. Return to text.

[118] See id. at 888-89. Return to text.

[119] Id. at 889. Return to text.

[120] See id. Return to text.

[121] Id. Return to text.

[122] See id. at 890. Return to text.

[123] See id. Return to text.

[124] See id. at 892-93. Justice Scalia acknowledged the inherent problem with such a view:

The case-by-case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts.

[125] Throughout this part of the opinion, Justice Scalia referred to the need for final agency actions that are "ripe" for review; suggesting that the concern here has more to do with "ripeness" than standing. See id. at 890-94. Return to text.

[126] See id. Return to text.

[127] Id. at 891. Return to text.

[128] See generally George Cameron Coggins & Doris K. Nagel, "Nothing Beside Remains": The Legacy of James G. Watt's Tenure as Secretary of the Interior on Federal Land Law and Policy, 17 B.C. ENVTL. AFF. L. REV. 473 (1990); George Cameron Coggins, The Public Interest in Public Land Law: A Commentary on the Policies of Secretary Watt, 4 PUB. LAND L. REV. 1 (1983). Return to text.

[129] See generally JOHN D. LESHY, THE MINING LAW: A STUDY IN PERPETUAL MOTION (1987); CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND THE FUTURE OF THE WEST 28-74 (1992). A "surge" of applications for oil and gas activities followed Secretary Watt's decision to open up wilderness areas; a decision which was accompanied by a considerable outcry. See Rowe Findley, Our National Forests: Problems in Paradise, NAT'L GEOGRAPHIC, Sept. 1982, at 306, 310-11. Return to text.

[130] See National Wildlife Fed'n, 497 U.S. at 892 n.3. Return to text.

[131] See Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963); Union Oil Co. v. Smith, 249 U.S. 337, 348-49 (1919); Hafen v. United States, 30 Fed. Ct. 470, 473 (1994). See generally Michael Graf, Application of Takings Law to the Regulation of Unpatented Mining Claims, 24 ECOLOGY L.Q. 57, 65-66 (1997); Barton H. Thompson, Jr., Resource Use and the Emerging Law of "Takings": A Realistic Appraisal, 42 ROCKY MTN. MIN. L. INST. 2-1 (1996). Return to text.

[132] See Bob Ekey, The New World Agreement: A Call for Reform of the 1872 Mining Law, 18 PUB. LAND & NAT. RESOURCES L. REV. 151 (1997) (discussing the purchase of the New World Mine site near Yellowstone National Park). See generally William J. Lockhart, External Threats to Our National Parks: An Argument for Substantive Protection, 16 STAN. ENVTL. L.J. 3, 7 (1997). Return to text.

[133] See National Wildlife Fed'n, 497 U.S. at 893. Return to text.

[134] See id. at 891. Return to text.

[135] See Kleppe v. Sierra Club, 427 U.S. 390 (1976); NRDC v. Hughes, 437 F. Supp. 981 (D.C.D.C. 1977), amended, 454 F. Supp. 148 (D.C.D.C. 1978). See generally Sam Kalen, Where Do We Go From Here?: The Federal Coal Leasing Amendments Act—Past, Present, and Future, 98 W. VA. L. REV. 1023 (1996); Hon. Leo M. Krulitz, Solicitor, Management of Federal Coal Reserves, 24 ROCKY MTN. MIN. L. INST. 139 (1978). Return to text.

[136] See NRDC v. Morton, 388 F. Supp. 829 (D.C.D.C. 1974), aff'd, 527 F.2d 1386 (D.C. Cir. 1976). In NRDC v. Hodel, NRDC challenged a programmatic amendment to the regulations governing grazing on the public lands which would "have permitted selected ranchers to graze livestock on the public lands in the manner that those ranchers deem appropriate." 618 F. Supp. 848, 852 (D.C. Cal. 1985). The court dismissed any concern over the group's standing because they were "users of the public lands." Id. at 854. Return to text.

[137] See NRDC v. Hodel, 624 F. Supp. 1045 (D. Nev. 1985), aff'd, 819 F.2d 927 (9th Cir. 1987) (reviewing adoption of a Management Framework Plan). In Conservation Law Foundation v. Harper, 587 F. Supp. 357 (D. Mass. 1984), various environmental groups challenged, in part, the Property Review Board's failure to comply with NEPA when implementing the programmatic policy of the Board on the disposal of federal land. See id. The court accepted the programmatic policy as an "action" subject to review and noted that the regulations under NEPA specifically define "major federal actions" to include programs that may involve a group of concerted or connected actions. See id. at 364. In Sierra Club v. Watt, 608 F. Supp. 305 (D.C. Cal. 1985), the plaintiffs challenged the Department of the Interior's order removing from its wilderness inventory (and thus from heightened environmental protection) over one million acres of public land. See id. The court granted standing, reasoning that the Sierra Club members' aesthetic and recreational use of the public lands satisfied the personal injury requirement. See id. at 315. Addressing the government's argument on causation and redressibility, the court concluded that the Secretary's decision would have definite effects that could be remedied immediately thorough an injunction. See id. at 316. See also National Wildlife Fed'n v. Morton, 393 F. Supp. 1286, 1289-91 (D.D.C. 1975) (holding that NWF had standing to challenge the Bureau of Land Management's regulation of off-road vehicles on several hundred million acres of land). Return to text.

[138] Identifying a precise geographic area or areas affected by the agency action generally has not been a problem for litigants. See, e.g., Alaska Ctr. for the Env't v. Browner, 20 F.3d 981, 985 (9th Cir. 1994) (holding that to establish injury in fact, plaintiffs need not establish that they used all the waters that would be affected, but rather only a representative sample). See also Resources Ltd. v. Robertson, 35 F.3d 1300, 1303 (9th Cir. 1994) (holding that failure to identify precise area of use not required); Sierra Club v. Hankinson, 939 F. Supp. 865 (N.D. Ga. 1996) (standing not raised in challenge under the CWA concerning the adoption of total maximum daily loads throughout the state). Cf. Conservation Law Found. v. Reilly, 950 F.2d 38, 43 (1st Cir. 1991) (holding that nationwide injunction not appropriate when plaintiffs only had standing to challenge decisions in which they had a geographical nexus). For a discussion of standing in Alaska Center, see Carl E. Bruch, Note, Where the Twain Shall Meet: Standing and Remedy in Alaska Center for the Environment v. Browner, 6 DUKE ENVTL. L. & POL'Y F. 157, 177-82 (1996). Return to text.

[139] See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Return to text.

[140] See id. at 558. Return to text.

[141] 16 U.S.C. § 1536(a)(2). Return to text.

[142] See Defenders of Wildlife, 504 U.S. at 558-59 (discussing 51 C.F.R. 402.01 (1991)). Return to text.

[143] See id. at 563 Return to text.

[144] See id. Return to text.

[145] See id. Return to text.

[146] See id. at 563-64. Return to text.

[147] See id. Return to text.

[148] See id. Return to text.

[149] See id. at 564. Return to text.

[150] See id. at 560-61. A three part inquiry already had been used. See Foundation on Econ. Trends v. Lyng, 943 F.2d 79, 82 (D.C. Cir. 1991) (citing Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982)). See also Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976); Warth v. Seldin, 422 U.S. 490 (1975); Linda R.S. v. Richard D., 410 U.S. 614 (1973). In Allen v. Wright, 468 U.S. 737 (1984), the Court observed that the fairly traceable and redressibility requirements for standing represent aspects of a single causation requirement, and that if any difference exists, "it is that the former examines the causal connection between the assertedly unlawful conduct and the alleged injury, whereas the latter examines the causal connection between the alleged injury and the judicial relief requested." Id. at 753 n.19, 759 n.24 (discussing Simon). Return to text.

[151] See Defenders of Wildlife, 504 U.S. at 562. Earlier, the Court indicated that the "indirectness" of an asserted injury makes it more difficult to satisfy the causation and redressibility requirements. See Allen, 468 U.S. at 757-58; Simon, 426 U.S. at 44-45; Warth, 422 U.S. at 505. Prior to the decision in Warth, these requirements had been implicitly addressed in Linda R.S., 410 U.S. at 617-18. See Winter, supra note 15, at 1373 n.9 ("The causation/ redressability requirement first appeared in Linda R.S. . . . and was constitutionalized in Warth . . . ."). See also infra note 190.

Justice Scalia, however, appears to have extended that precedent to all situations and not just to instances where these requirements were surrogates for determining whether a litigant was asserting "generalized grievances." Cass Sunstein explained that Justice Scalia had a penchant for treating the objects of regulation differently than the beneficiaries of regulation. See Sunstein, supra note 15, at 195-97. According to Sunstein, this distinction is rooted in the common law model of litigation and should have become a "conceptual anachronism" after the New Deal and the rise of modern administrative law. See id. at 186-88. Justice Scalia's earlier law review article presaged his concern with any broad standing doctrine. See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881 (1983). Return to text.

[152] See Defenders of Wildlife, 504 U.S. at 562-63. Return to text.

[153] See id. at 563. However, Justice Scalia indicated in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), that these facts would have been sufficient to overcome a motion to dismiss at the pleading stage. See id. at 1012 n.3. Return to text.

[154] See Defenders of Wildlife, 504 U.S. at 564. Justice Scalia invoked Los Angeles v. Lyons, 461 U.S. 95 (1983), for this imminent injury requirement. See Defenders of Wildlife, 504 U.S. at 560, 564. The decision in Lyons involved an entirely different situation: the plaintiff initially sought preliminary injunctive relief against the allegedly unconstitutional practice of police bar-arm chokeholds. See Lyons, 461 U.S. at 97. When the case came before the Court five years later, the plaintiff was no longer seeking preliminary injunctive relief. See id. at 101. The plaintiff indicated that he was no longer under any threat of injury and that the illegal actions would continue against him. See id. He urged the Court either to dismiss the writ of certiorari as improvidently granted or to have the preliminary injunction vacated. See id. The Court nevertheless transformed the issue from one of mootness into one of standing and concluded that there was no case or controversy because the plaintiff could not show any immediate threat of direct injury. See id. at 100-11. At best, therefore, Lyons merely requires some likelihood that the allegedly illegal act that causes the injury is likely to occur before a court can award injunctive relief. The need for some imminence requirement arguably made sense because the injury was the illegal act itself. This situation is entirely different than the circumstance in Defenders of Wildlife, where the action being challenged is occurring. Steven Winter examined the Lyons decision in detail to illustrate the "incoherences" of standing law. See Winter, supra note 15, at 1374-75. Return to text.

[155] See Defenders of Wildlife, 504 U.S. at 564. Return to text.

[156] See id. at 565. Return to text.

[157] Id. Return to text.

[158] Id. at 566. Return to text.

[159] See id. Return to text.

[160] See id. at 565-66. Return to text.

[161] Id. at 567. Return to text.

[162] See id. at 568-71. Return to text.

[163] Justice White has since required from the Supreme Court. Return to text.

[164] See id. at 571. Return to text.

[165] See id. 568-71. Justice Scalia further noted that redressibility was unlikely because even if the agencies participating in the overseas projects declined to participate, the projects might proceed anyway. See id. at 571. This outlook was refuted in Justice Blackmun's dissent. See id. at 599-601 (Blackmun, J., dissenting). Cf. Earth Island Inst. v. Christopher, 913 F. Supp. 559, 570 (CIT 1995) (noting, after examining the factual circumstances, that the court's ruling would affect third parties). Return to text.

[166] See Defenders of Wildlife, 504 U.S. at 571-78. Return to text.

[167] See id. at 572. Return to text.

[168] Id. at 573. Return to text.

[169] See id. at 572-73. Although Justice Scalia agreed that procedural rights may be "special," he was only willing to relax the "normal standards for redressibility and immediacy." Id. at 572 n.7. This led him to conclude as follows:

Thus, under our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years . . . . What respondents' "procedural rights" argument seeks, however, is quite different from this: standing for persons who have no concrete interests affected—persons who live (and propose to live) at the other end of the country from the dam.

[170] See id. at 574-78. Justices Kennedy and Souter concurred in all but the redressibility discussion of Justice Scalia's opinion. See id. at 579-81 (Kennedy, J., and Souter, J., concurring). In their concurrence, the two Justices left open the possibility that one of the nexus theories might apply in the appropriate case. See id. at 579. While they recognized that modern litigation is not the same as the old common law (or private law) paradigm, they agreed that a showing of concrete injury is necessary to ensure the lawsuit is truly adversarial. See id. at 579-81. Although Justice Stevens would have found against the Defenders on the merits, he rejected the majority's treatment of standing and concluded that the Defenders did have standing. See id. at 581-89 (Stevens, J., concurring). Lastly, Justices Blackmun and O'Connor also disagreed with the majority's treatment of standing and dissented. See id. at 589-606 (Blackmun, J., and O'Connor, J., dissenting). Return to text.

[171] See, e.g., Gene R. Nichol, Jr., Justice Scalia, Standing, and Public Law Litigation, 42 DUKE L.J. 1141 (1993); Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed Limit on Legislative Power, 42 DUKE L.J. 1170 (1993); Sunstein, supra note 15. But see Marshall J. Breger, Defending Defenders: Remarks on Nichol and Pierce, 42 DUKE L.J. 1202 (1993); John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 DUKE L.J. 1219 (1993). Return to text.

[172] See Defenders of Wildlife, 504 U.S. at 564. Return to text.

[173] See id. Return to text.

[174] See id. at 579 (Kennedy, J., and Souter, J., concurring). Without a doubt, the airline tickets would be far less costly than having to litigate the standing issue. Return to text.

[175] See id. at 583 (Stevens, J., concurring). Return to text.

[176] See supra note 154. Return to text.

[177] See Defenders of Wildlife, 504 U.S. at 564, 565 n.2. Return to text.

[178] See id. at 564. Return to text.

[179] See id. at 583-84 (Stevens, J., concurring). Return to text.

[180] See id. at 564, 572 n.7. Return to text.

[181] See id. at 567. Return to text.

[182] Justice Scalia began his analysis by stating that the claimed injury is the increased rate of extinction of endangered and threatened species caused by defendant's allegedly invalid rule. See id. at 562. He then questioned whether the plaintiff's members would be "directly" affected by this increased rate of extinction, reasoning that the lost opportunity to observe and study those species is not enough to produce a direct effect. See id. at 563-64. In effect, he redefined the alleged injury as one involving an alleged use of the affected area. See id. But cf. Sunstein, supra note 15, at 204-05 (suggesting that, because of the wording of the ESA, the plaintiff should have characterized the injury as one of a diminished opportunity). Return to text.

[183] See Defenders of Wildlife, 504 U.S. at 572-73. Return to text.

[184] For instance, the person living near the proposed site of a federally licensed dam or the whale watchers in Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221 (1986), would have standing, according to Justice Scalia, because of their geographic relationship to the affected area. See Defenders of Wildlife, 504 U.S. at 572 n.7, 573 n.8. Return to text.

[185] Defenders of Wildlife, 504 U.S. at 567 n.3. Return to text.

[186] See 16 U.S.C. §§ 1531(a), 1531(b), 1537; Carlo A. Balistrieri, CITES: The ESA and International Trade, NAT. RESOURCES & ENV'T, Summer 1993, at 33 (discussing the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)). Return to text.

[187] See Defenders of Wildlife, 504 U.S. at 564. Return to text.

[188] This type of inquiry is better suited to the situation in which a federal agency with technical expertise makes an informed scientific judgment and a court is called upon to review that judgment. Return to text.

[189] See infra note 401 (discussing somewhat similar interests). Return to text.

[190] See Defenders of Wildlife, 504 U.S. at 584-85, 595-601. Return to text.

[191] Redressibility, an aspect of the causation requirement, appears to have originated primarily as an outgrowth of the nexus requirement articulated in cases such as Flast v. Cohen, 392 U.S. 83, 102-03 (1968), and United States v. Richardson, 418 U.S. 166, 174-76 (1974). Redressibility further served as a prudential mechanism for limiting when litigants could seek to assert the rights of third parties. See Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 474 (1984) (referring to "prudential principles" for asserting rights of third parties); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 80-81 (1978). See also supra notes 149-50. In Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976), the Court applied a causation/redressibility requirement and concluded that the plaintiffs lacked standing because it would be wholly speculative whether the Court's relief would even affect the plaintiffs' asserted interest. See id. at 42-43. The plaintiffs challenged a Treasury Department revenue ruling that allegedly discouraged hospitals from treating indigents. See id. at 43. The Court stated that it was too uncertain whether third party hospitals, not parties to the litigation, would necessarily treat indigents but for that revenue ruling. See id. Regardless of the efficacy of the Simon opinion, it is a different situation from that in Defenders of Wildlife, where the plaintiff's asserted interest would be remedied by judicial relief. Return to text.

[192] Sive, supra note 15, at 56. In their concurrence, Justices Kennedy and Souter suggested possible ways for Congress to remedy an otherwise broad grant of standing. See Defenders of Wildlife, 504 U.S. at 579-81 (Kennedy, J., and Souter, J., concurring). What is interesting about the treatment of the citizen suit provision is how the issue was treated in the past. Until Defenders of Wildlife, according to Richard Pierce, "the Court deferred to congressional intent with respect to standing where it was able to discern that intent." Pierce, supra note 171, at 1179. In Sierra Club, the Court specifically noted that Congress could confer standing to sue as long as the suit was not a friendly suit and did not seek an advisory opinion or ask to resolve a political question. See Sierra Club, 405 U.S. at 732 n.3. In the same year it decided Sierra Club, the Court found standing solely on the basis of a statutory right to sue in a case where standing may not have existed absent the statute. See Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 212 (1972). See also Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973) ("But Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute."); Warth v. Seldin, 422 U.S. 490, 501 (1975) (indicating that Congress could confer standing if the plaintiff alleged a "distinct and palpable injury to himself"); Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41 n.22 (1976) (discussing footnote in Linda R.S. and the statement in Warth). Other courts have accepted Congress' ability to confer standing absent any indication that the parties are not adversarial. In Animal Welfare Institute v. Kreps, 561 F.2d 1002 (D.C. Cir. 1977), for example, the court indicated that, while Congress cannot authorize judicial review in the absence of a case or controversy, it can create legal rights. See id. at 1005-06. The court thus implied that by con ferring standing, Congress essentially creates the legal right to ensure against a violation of the statute at issue. Return to text.

[193] See Sunstein, supra note 15, at 223-24. See also Feld, supra note 32, at 164 (proffering a similar solution). Return to text.

[194] 117 S. Ct. 1154 (1997). Return to text.

[195] The Ninth Circuit's decision in Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995), has been described as "representative of the widespread confusion over the concept of standing, the role of 'prudential' concerns in the standing analysis, and more specifically, the meaning and use of the zone of interests test." Kathleen C. Becker, Bennett v. Plenert: Environmental Citizen Suits and the Zone of Interests Test, 26 ENVTL. L. 1071, 1072 (1996) (citations omitted). See also Sheldon K. Rennie, Note, Bennett v. Plenert: Using the Zone-of-Interests Test to Limit Standing Under the Endangered Species Act, 7 VILL. ENVTL. L.J. 375 (1996). Return to text.

[196] See Defenders of Wildlife v. Hodel, 851 F.2d 1035 (8th Cir. 1988), rev'd on other grounds sub nom. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Mausolf v. Babbitt, 913 F. Supp. 1334 (D. Minn. 1996), rev'd, 85 F.3d 1295 (8th Cir. 1996). In Mausolf, the court held that intervenors must satisfy Article III standing to litigate in federal court. See Mausolf, 85 F.3d at 1301-02. In doing so, the court implicitly accepted the district court decision on the standing of snowmobilers to bring a lawsuit under the ESA, albeit quoting from the part of the decision that suggested that the snowmobilers also alleged an environmental harm in not being able to observe wolves in their natural habitat. See id. In Mountain States Legal Found. v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996), the D.C. Circuit disagreed with the Ninth Circuit's decision in Plenert, concluding that economic interests play an important and constraining role in the implementation of the ESA. See id. at 1237; see also Robert I. Levy, Note, Mountain States Legal Foundation v. Glickman: Environmental Standing Continues Its Trek As a Moving Target, 10 TUL. ENVTL. L.J. 123 (1996). In Idaho v. ICC, 35 F.3d 585 (D.C. Cir. 1994), where the plaintiff's objective was to avoid the economic impact from an abandoned railroad line, the court's application of the zone of interests test was so expansive that the inquiry seemed almost meaningless. See id. at 590-92. As the petitioners argued in Bennett, Brief for Petitioners, Bennett v. Spear, 117 S. Ct. 1154 (1997) (No. 95-813) [hereinafter Petitioners' Brief], economic interests brought the lawsuit in Babbitt v. Sweet Home Chapter of Communities, 515 U.S. 687 (1995), and the Court never questioned standing in that case. See Petitioner's Brief at 25. Return to text.

[197] In Pacific Northwest Generating Co-op. v. Brown, 38 F.3d 1058 (9th Cir. 1994), the Ninth Circuit observed that it was uncertain whether the zone of interests test applied to suits involving the ESA. See id. at 1065. However, assuming that the test did apply, the court proceeded to find standing in groups with an economic interest. See id. Prior to the Court's opinion in Bennett, Judge Reinhardt issued an opinion involving a challenge under the ESA brought by interests he described as "not Good Samaritans," without ever questioning standing in his written opinion. See Ramsey v. Kantor, 96 F.3d 434, 440 (9th Cir. 1996); see also Aluminum Co. of Am. v. Bonneville Power Admin., 56 F.3d 1075 (9th Cir. 1995) (disregarding the question of whether the petitioners' economic interests established standing for their challenge, in part, under NEPA and the ESA, and dismissing the case as moot instead). The Ninth Circuit's application of the zone of interests test ignored other provisions of the ESA. For instance, under the ESA, any "interested person" may petition the USFWS to list, delist, or reclassify the status of a species. See 16 U.S.C. § 1533(b)(3)(A). Standing has not been an issue when environmental groups have sued the USFWS/NMFS for failure to list a particular species or designate a critical habitat. See Environmental Def. Ctr. v. Babbitt, 73 F.3d 867 (9th Cir. 1995); Defenders of Wildlife v. Babbitt, No. 96-160 (D.C.D.C. March 27, 1997); Carlton v. Babbitt, 900 F. Supp. 526 (D.D.C. 1995) (reclassification of grizzly bear). Standing also has not been a significant problem when parties have tried to challenge a proposed listing by those not interested in protecting the species. See Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392 (9th Cir. 1995); Alabama-Tombigbee Rivers Coalition v. Department of Interior, 26 F.3d 1103 (11th Cir. 1994) (violation of Federal Advisory Committee Act); City of Las Vegas v. Lujan, 891 F.2d 927 (D.C. Cir. 1989) (challenge to emergency listing of desert tortoise); Endangered Species Comm'n of Bldg. Ind. Ass'n v. Babbitt, 852 F. Supp. 32 (D.D.C. 1994). But cf. Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Babbitt, No. CIV 94-1058-M, 1997 U.S. Dist. LEXIS 4212 (D.N.M. Mar. 11, 1997) (denying standing to parties with an asserted economic interest in emergency listing of desert tortoise for failure to establish a sufficient interest in the listing). Cf. Coalition of Ariz./N.M. Counties for a Stable Econ. Growth v. Babbitt, 100 F.3d 837 (10th Cir. 1996) (discussing ongoing challenge to the listing of the Mexican Spotted Owl). Return to text.

[198] Letter from John D. Leshy, Solicitor, Department of the Interior, to Hon. Don Young, Chairman, Committee on Resources, House of Representatives (Mar. 11, 1997). Return to text.

[199] Id. Return to text.

[200] See Bennett, 117 S. Ct. at 1158-59. Return to text.

[201] See Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Shortnose Sucker and Lost River Sucker, 53 Fed. Reg. 27,130 (1988) (codified at 50 C.F.R. pt. 17). Return to text.

[202] 16 U.S.C. § 1533. Return to text.

[203] See Bennett, 117 S. Ct. at 1159. Return to text.

[204] See id. Return to text.

[205] See id. at 1165. The biological opinion also included an incidental take statement, authorizing a certain level of otherwise prohibited "taking" of the species. See id. Return to text.

[206] See id. at 1159. Return to text.

[207] See id. at 1160. Return to text.

[208] The districts and members argued that the USFWS violated section 7 of the ESA by not using the "best scientific and commercial data available," and that the use of restrictions on the withdrawal of water implicitly operated as a designation of critical habitat, and as such violated the requirements for designating critical habitat under section 4. See id. at 1159-60, 1165-66, 1168. Return to text.

[209] See id. at 1160. Return to text.

[210] See Bennett v. Plenert, 63 F.3d 915, 917-19 (9th Cir. 1995). Return to text.

[211] See id. at 917-18. Return to text.

[212] See id. at 919. Return to text.

[213] Id. at 919 (emphasis added). Following the same analysis that it applied in NEPA cases, the court looked to the overall purpose of the ESA. See id. at 920. Return to text.

[214] Petitioners generally argued that the zone of interests test could be satisfied either by persons whose interests are protected by the Act or by those whose interests are regulated by the Act. See Petitioners' Brief at 29-41, Bennett (No. 95-813). Petitioners further argued that even if one looked only at those to be protected by the Act, the ESA includes within its ambit economic-based considerations. See id. Return to text.

[215] Brief for Respondents at 17-50, Bennett v. Spear, 117 S. Ct. 1154 (1997) (No. 95-813) [hereinafter Respondent's Brief]. Return to text.

[216] In a curious footnote, the United States left unresolved how it would treat the zone of interests test:

In our view, the difficult "zone of interests" questions under the ESA citizen suit provision involve situations very far removed from the present one. Suppose, for example, that the owner of land adjacent to government property complained that logging on the federal land caused dust and noise and thereby hindered his enjoy ment of his own land. He might contend in addition that the logging jeopardized the continued existence of an endangered bird species. The property owner might expressly disavow any personal interest in the fate of the bird but argue that he was nonetheless entitled to invoke the ESA citizen suit provision, on the ground that he had suffered injury in fact from the same government conduct that was alleged to violate the ESA. That allegation would surely satisfy Article III; the question is whether the fortuitous relationship between the landowner's injury and the values protected by the ESA would trigger the application of prudential standing requirements.

[217] See id. at 17-29. Return to text.

[218] Id. at 19 (emphasis added). Return to text.

[219] See id. at 22 n.10 ("The Services have consistently recognized that the action agency retains legal authority to accept or reject the recommendations contained in a biological opinion."); see also infra note 249 and accompanying text. Return to text.

[220] Respondent's Brief at 22, Bennett (No. 95-813). Review of a biological opinion is available, argued the United States, "only after the Bureau has acted, and only within the context of a challenge to specific actions taken by the Bureau in reliance on that opinion." Id. at 25. Return to text.

[221] See id. at 26. Return to text.

[222] Id. at 27. The Justice Department distinguished petitioners' claims from those of a party alleging a procedural injury by explaining that here the injury, if any, would be caused by a third party (the Bureau) not before the Court. See id. at 27-28. The Department added that in the Defenders of Wildlife footnote seven hypothetical, the plaintiff could show injury caused by the construction of the dam, which could be remedied (at least temporarily) by a court order requiring the preparation of an environmental impact statement (EIS). See id. at 29 n.15. This explanation, however, avoids defining the "harm" in a case involving a procedural injury. Petitioners had stated that "each of the claims asserted by [them] is in the nature of a procedural right." Reply Brief for Petitioners at 8, Bennett v. Spear, 117 S. Ct. 1154 (1997) (No. 95-813). They argued that the Secretary failed in several respects to provide sufficient consideration to various issues and that reduced standards for redressibility exist when raising a procedural right. See id. Return to text.

[223] One of the Justices joining in that part of the opinion, Justice White, is no longer on the Court. More importantly, the present Administration's Justice Department presumably believes in a more liberal law of standing. Return to text.

[224] See Respondent's Brief at 30-35, Bennett (No. 95-813). Return to text.

[225] See id. Return to text.

[226] See id. at 34 (noting that in some cases final agency action and ripeness are not necessarily the same). Return to text.

[227] The government observed that "plaintiffs may obtain vacatur of an action agency's decision by showing that it was based on a biological opinion that failed to satisfy the arbitrary-and-capricious standard of review." Id. at 47 n.31. The United States added that a lawsuit against the Bureau challenging the Bureau's allocation decision would fall within the zone of interests test. See id. at 49 n. 34. Return to text.

[228] See id. at 35-38. Return to text.

[229] Petitioners argued that their claims fell within sections 11(g)(1)(A) and 11(g)(1)(C) of the ESA, 16 U.S.C. § 1540, the former section authorizing citizen suits for a "violation" of the Act, and the latter authorizing citizen suits for the failure to perform a nondiscretionary duty. See Petitioners' Brief at 19, Bennett (No. 95-813). The United States countered that section 11(g)(1)(A) does not apply to agency actions unless there is an alleged violation of one of the proscriptions of the Act and that 11(g)(1)(C) applies to agency actions, but only when the agency is under a nondiscretionary duty to act and fails to do so. See Respondents' Brief at 34-46, Bennett (No. 95-813). Absent an alleged violation of the Act, such as an agency's decision to allow an activity that is likely to jeopardize an endangered species, or the failure of an agency to undertake a nondiscretionary duty required by the ESA, the only avenue for relief is through the APA. See id. Return to text.

[230] Bennett v. Spear, 117 S. Ct. at 1154, 1161 (1997) (citations omitted). Return to text.

[231] See id. at 1162. The Court's analysis tracked the petitioners' argument. See Petitioner's Brief at 19-20, Bennett (No. 95-813). Perhaps to avoid essentially abrogating the zone of interests test for other citizen suit provisions, the Court noted that the language of section 11(g) of the ESA appears broader than the language Congress used in other citizen suit provisions, such as in the CWA. See Bennett at 1162. Return to text.

[232] Id. at 1162. These considerations seem remarkably similar to the arguments presented by environmental advocates and rejected by the Court 25 years ago. Return to text.

[233] See id. at 1163. Return to text.

[234] See id. at 1163-64. Return to text.

[235] See id. Return to text.

[236] See id. at 1164-65. Return to text.

[237] Id. at 1164 (quoting from the Respondents' Brief about the practical significance of biological opinions and stating that while they may not be binding on the federal agency action, they appear to have a "determinative effect."). Cf. Swan View Coalition, Inc. v. Turner, 824 F. Supp. 923, 932 (D. Mont. 1992) (examining the same issue in a different manner). Return to text.

[238] See id. at 1164-65. Since Bennett, environmental plaintiffs have successfully argued that they could seek review of a biological opinion that would allow an incidental taking of listed species. See Southwest Center for Biological Diversity v. Babbitt, CIV 97-0786-PHX, at 12 (D. Ariz. filed Aug. 25, 1997). Return to text.

[239] See id. at 1165. This judgment is perhaps conclusory because the Bureau of Reclamation could still choose to adopt water level restrictions, even in the absence of any "determinative or coercive" threat. See generally Reed D. Benson, Whose Water Is It? Private Rights and Public Authority over Reclamation Project Water, 16 VA. ENVTL L.J. 363 (1997); Michael R. Moore et al., Water Allocation in the American West: Endangered Fish Versus Irrigated Agriculture, 36 NAT. RESOURCES J. 319 (1996); Richard W. Wahl, Redividing the Waters: The Reclamation Act of 1902, 10 NAT. RESOURCES & ENV'T 31 (1995). The Bureau could do so simply as part of a general conservation measure or pursuant to a conservation program under section 7(a)(1) of the ESA. See 16 U.S.C. § 1536(a). See generally J.B. Ruhl, Section 7(a)(1) of the "New" Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies' Duty to Conserve Species, 25 ENVTL. L. 1107 (1995). Indeed, the Department of the Interior has suggested that the Department can manage and operate the Klamath Project in a manner designed to protect tribal rights. See Letter from David Nawi et al., Regional Solicitor of Pacific Southwest Region, to Regional Director of Region 1, U.S. Fish and Wildlife Service, et al. (Jan. 9, 1997) (on file with author). Since the decision in Bennett, irrigators have sued the Department of the Interior over its management of the project, aside from the ESA and the biological opinion. Thus, the Court's sleight of hand in dealing with redressibility illustrates a fundamental problem with applying the requirement to cases involving a procedural violation. See infra notes 386-99 and accompanying text. Return to text.

[240] Petitioners' claim that the USFWS' biological opinion implicitly designated critical habitat without following the procedures for such a designation fell within the ambit of section 11(g)(C), but the petitioners' other claims involved what the Court termed "maladministration" and could not be brought under any clause of section 11(g). See Bennett, 117 S. Ct. at 1166-67. This part of the Court's holding effectively overrules the same aspect of Swan View Coalition where the district court had allowed a citizen suit challenging the adequacy of a biological opinion, or maladministration. See Swan View Coalition, 824 F. Supp. at 929. Cf. Battaglia v. Browner, 963 F. Supp. 689 (E.D. Ill. 1997) (applying similar reasoning to citizen suit provision of the Comprehensive Environmental Response, Compensation, and Liability Act). Return to text.

[241] See Bennett, 117 S. Ct. at 1167-69. Return to text.

[242] See id. Return to text.

[243] Id. at 1167. The Court emphasized that in Data Processing it "did not require that the plaintiffs' suit vindicate the overall purpose of the Bank Service Corporation Act of 1962, but found it sufficient that their commercial interest was sought to be protected by the anti-competition limitation contained in section 4 of the Act—the specific provision which they alleged had been violated." Id. Not only did Justice Scalia's comment ignore that Data Processing was not a model of clarity, but he also overlooked the contrary suggestion expressed by the Court in Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 401 (1987). Citing to Clarke, for instance, the Tenth Circuit observed that "[a] court must look at both the specific purpose of the statute and the more general purposes of the act in which the statute is contained." Mount Evans Co. v. Madigan, 14 F.3d 1444, 1452 (10th Cir. 1994). Opinions involving NEPA claims also have invariably looked to the objectives of NEPA, not to the specific statutory requirement for the preparation of an EIS under 42 U.S.C. § 4332(c). E.g., City of Los Angeles v. Glickman, 950 F. Supp. 1005, 1012-14 (C.D. Cal. 1996). See also 6 JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 50.03, at 50-64 (1997) (stating that courts have looked to the statute as a whole to discern the zone of interests to be protected). Return to text.

[244] Bennett, 117 S. Ct. at 1168. The Court added that the ESA contemplates consideration of economic consequences in the section 7 consultation process. See id. The reasoning here may be somewhat superficial, because in TVA v. Hill, 437 U.S. 153 (1978), the Court clearly indicated that economic consequences were irrelevant in the consideration of whether a particular action is likely to jeopardize the continued existence of a threatened or endangered species or result in adverse modification or destruction of critical habitat. See id. The Court's citation to section 7(h) as evidence that the ESA is concerned with economic consequences demonstrates a less than thorough analysis. Section 7(h) of 16 U.S.C. § 1536(h) is what has been called the "God Committee" provision of the Act, and is neither reflective of the purposes of the Act nor has it proved all that useful. See generally Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce, 64 U. COLO. L. REV. 277, 329-44 (1993); Jared des Rosiers, Note, The Exemption Process Under the ESA: How the "God Squad" Works and Why, 66 NOTRE DAME L. REV. 825 (1991). Return to text.

[245] See Bennett, 117 S. Ct. at 1168. Return to text.

[246] According to the Court, "the Biological Opinion and accompanying Incidental Take Statement alter the legal regime to which the action agency is subject, authorizing it to take the endangered species if (but only if) it complies with the prescribed conditions." Id. Oddly enough, this description comes from the Petitioner's Brief and is otherwise wholly unsupported. Return to text.

[247] See supra note 198 and accompanying text. Return to text.

[248] See Respondents' Brief at 15-16, Bennett (No. 95-813). Return to text.

[249] Prior to the Court's decision, biological opinions generally had not been treated as final agency actions because they were not considered binding. One of the Department of Justice's leading experts on the ESA opined that biological opinions are not binding on the action agency. See James C. Kilbourne, The Endangered Species Act Under the Microscope: A Closeup Look From a Litigator's Perspective, 21 ENVTL. L. 499, 543-44 (1991). See also 43 Fed. Reg. 871 (1978) ("[T]he ultimate responsibility for determining agency action in light of section 7 still rests with the particular Federal agency that was engaged in consultation."). Since Bennett, U.S. District Court Judge Marsh has allowed parties to challenge a biological opinion directly. See American Rivers v. National Marine Fisheries Serv., No. 96-384-MA, 1997 U.S. Dist. LEXIS 5337 (D. Or. Apr. 3, 1997). See also IDFG v. National Marine Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994), vacated as moot, 56 F.3d 1071 (9th Cir. 1995); Swan View Coalition, Inc. v. Turner, 824 F. Supp. 923 (D. Mont. 1992). Return to text.

[250] Pierce, supra note 171, at 1185. Return to text.

[251] See id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n.8 (1992)). Pierce suggested that this part of the majority opinion appears "well-reasoned" and means that "a person cannot obtain judicial review of an agency action based only on injury to a 'procedural right.'" Pierce, supra note 171, at 1185. Return to text.

[252] See, e.g., Sive, supra note 15. Return to text.

[253] See Foundation on Econ. Trends v. Lyng, 943 F.2d 79, 83 (D.C. Cir. 1991). In Lyng, the court observed that this type of standing was first raised by a footnote in Scientists' Inst. for Pub. Info., Inc. ("SIPI") v. Atomic Energy Comm'n, 481 F.2d 1079, 1086-87 n.29 (D.C. Cir. 1973), where the D.C. Circuit noted "that the plaintiff organization might have standing because it distributed scientific information to the public, an activity adversely affected by the agency's failure to provide an impact statement." Lyng, 943 F.2d at 83. The Lyng court than traced some of the post-SIPI cases and concluded that it has "never sustained an organization's standing in a NEPA case solely on the basis of 'informational injury,' that is, damage to the organization's interest in disseminating the environmental data an impact statement could be expected to contain." Id. at 84. The court warned that allowing such informational standing would eliminate any standing requirement in NEPA cases and concluded that the plaintiffs in Lyng lacked standing. See id. The Lyng court's reasoning is reminiscent of the National Wildlife Federation decision where the Court held that there was no identifiable federal agency action, an issue different from that of standing. See National Wildlife Fed'n, 497 U.S. at 890. In a separate opinion, Judge Buckley wrote that the majority in Lyng inappropriately confused the issue of standing with the substantive claim under NEPA. See Lyng, 943 F.2d at 87 (Buckley, J., dissenting in part and concurring in part). Relying on Competitive Enter. Inst. v. NHTSA, 901 F.2d 107 (D.C. Cir. 1990), Judge Buckley would have held that the plaintiffs had standing to assert informational injury. See id. See also Oregon Natural Desert Ass'n v. Green, 953 F. Supp. 1133, 1141 (D. Or. 1997) (discussing right to be apprised of environmental effects); Colorado Envtl. Coalition v. Lujan, 803 F. Supp. 364, 367 (D. Colo. 1992) (accepting informational injury as valid interest supporting standing). See generally Randall S. Abate & Michael J. Myers, Broadening the Scope of Environmental Standing: Procedural and Informational Injury-in-Fact After Lujan v. Defenders of Wildlife, 12 J. ENVTL. L. 345 (1994) (arguing for a recognition of informational injury); Christopher T. Burt, Comment, Procedural Injury Standing After Lujan v. Defenders of Wildlife, 62 U. CHI. L. REV. 275, 290-93 (1994) (questioning informational injury); Brian J. Gatchel, Informational and Procedural Standing After Lujan v. Defenders of Wildlife, 11 J. LAND USE & ENVTL. L. 75 (1995) (favoring informational injury); Lawrence Gerschwer, Note, Informational Standing Under NEPA: Justiciability and the Environmental Decisionmaking Process, 93 COLUM. L. REV. 996 (1993). Return to text.

[254] Distinguishing between procedural and informational injury is not necessarily productive. For example, Randall S. Abate and Michael J. Myers posit that "the main difference between the two harms exists in who is prevented from protecting the rights of the public: in procedural injury, the government; in informational injury, the public itself." Abate & Myers, supra note 253, at 385. The problem with this approach is that talking about the "public itself" is unrealistic. The "public" via Congress has entrusted to administrative agencies the authority to act in accordance with certain procedures and in the public interest. To say, then, that the public itself is injured when it does not receive information is most certainly accurate, but to presume that the existence of such harm translates into a cognizable interest that may be asserted by any person or organization asserting an interest in facilitating that dissemination is to draw lines without ends. This is quite different than where a restraint is placed on an organization's ability to disseminate information. See Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975). One author suggests that the parameters of informational standing can be bounded by the requirement for a geographical nexus to or actual use of an affected area. See Gatchel, supra note 253, at 85 n.73. However, the application of this requirement would eviscerate the need to invoke informational standing in the first place. If the focus shifts from an interest in disseminating information toward an interest in receiving information, then it seems more precise to talk about the agency's failure to provide the public with information that is required to be supplied under statutes such as NEPA, the APA, or the Freedom of Information Act; in other words, a procedural violation.

In National Wildlife Federation, although Justice Scalia declined to address the deprivation of information as an asserted injury, his passing remarks are instructive. See National Wildlife Federation, 497 U.S. at 899. He characterized the injury as one involving the failure to provide information to organizations such as NWF, and suggested that such an injury would require showing that Congress contemplated that "providing information to organizations such as respondent was one of the objectives of the statutes allegedly violated." Id. For a discussion of informational standing under other federal statutes, see Abate & Myers, supra note 253, at 351-58. See also Animal Legal Defense Fund v. Yeutter, 760 F. Supp. 923 (D.D.C. 1991) (informational standing under the Animal Welfare Act), vacated sub nom. Animal Defense Fund, Inc. v. Espy, 23 F.3d 496 (D.C. Cir. 1994) (rejecting informational standing). Cf. Fund for Animals v. Babbitt, 89 F.3d 128, 134 (2nd Cir. 1996) (suggesting an implied informational injury). For a discussion of Yeutter, see GARY L. FRANCIONE, ANIMALS, PROPERTY, AND THE LAW 79-84 (1995). The Emergency Planning and Community Right-to-Know Act, 42 U.S.C. §§ 11001-11050 (1994), is perhaps the best example of an environmental program premised on the dissemination of information. See generally Abate & Myers, supra note 253, at 374-76. Informational injury also might exist for violations of the Federal Election Campaign Act. Compare Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc) (granting standing), with Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) (denying standing). Return to text.

[255] In Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989), the Court stated that one of the purposes of NEPA's action forcing procedures is to guarantee "that the relevant information will be made available to the larger audience that may also play a role both in the decisionmaking process and the implementation of that decision." Id. at 349. See also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989) (stating that NEPA goals are primarily accomplished by allowing governmental and public attention to be focused on the environmental effects of the proposed agency action). Two of the primary purposes of the APA are to ensure that the public is kept informed of federal agency activities and to provide for public participation in the administrative process. See UNITED STATES DEPARTMENT OF JUSTICE, ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 9 (1947). Return to text.

[256] See Douglas County v. Babbitt, 48 F.3d 1495, 1499 (9th Cir. 1995) (quoting Nevada Land Ass'n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993)). Return to text.

[257] 947 F. Supp. 1 (D.D.C. 1996). Return to text.

[258] See id. at 5. Return to text.

[259] See id. Return to text.

[260] 479 U.S. 388 (1987). Return to text.

[261] Los Angeles v. Department of Agric., 950 F. Supp. 1005, 1012 (C.D. Cal. 1996) (citations omitted); see also County of St. Louis v. Thomas, 967 F. Supp. 370, 377 (D. Minn. 1997) (denying standing to plaintiffs to raise NEPA claim for economic losses). Courts occasionally allow parties with economic interests to present a NEPA challenge when some other party in the litigation raises a NEPA issue as well. See Association of Pub. Agency Customers, Inc. v. Bonneville Power Admin., No. 95-70862, 1997 U.S. App. LEXIS 26278, *74 n.9 (9th Cir. Sept. 24, 1997). Return to text.

[262] See id. at 1013. Return to text.

[263] Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1236 (D.C. Cir. 1996). Early on, the Eighth Circuit similarly stated that "[i]ndividuals motivated in part by protection of their own pecuniary interests can challenge administrative action under NEPA provided that their environmental concerns are not so insignificant that they ought to be disregarded altogether." Robinson v. Knebel, 550 F.2d 422, 425 (8th Cir. 1977) (citations omitted). Return to text.

[264] 75 F.3d 1429 (10th Cir. 1996). Return to text.

[265] See id. at 1433. Return to text.

[266] Id. Return to text.

[267] See id. at 1439. On the merits, the court held that the USFWS was required to comply with NEPA before designating a critical habitat under ESA. See id. In Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Babbitt, No. 95-1285-M, slip op. at 8 (D.N.M. March 4, 1997), the court held that parties challenging the critical habitat designation for the Mexican Spotted Owl had standing to raise a NEPA claim. See id. at 8. The court noted that it was "disinclined" to explore the plaintiffs' motives and that the issues raised were not merely economic. See id. The court added that the parties had standing to raise procedural interests as well. See id. at 9. Return to text.

[268] 48 F.3d 1495 (9th Cir. 1995). Return to text.

[269] See id. at 1501. However, on the merits of the claim the court reached a contrary result from that in Catron County. See id. at 1507. Return to text.

[270] See id. at 1502. Return to text.

[271] See id. at 1500. Return to text.

[272] See id. at 1500-01. Return to text.

[273] See id. at 1500. Return to text.

[274] Id. at 1501. Return to text.

[275] See Catron County, 75 F.3d at 1433. Return to text.

[276] Id. Return to text.

[277] See Douglas County, 48 F.3d at 1500. Return to text.

[278] See id. at 1500 n.4. Return to text.

[279] See id. Return to text.

[280] See id. at 1501. See also City of Davis v. Coleman, 521 F.2d 661, 672 (9th Cir. 1975) (employing similar reasoning). Return to text.

[281] See Douglas County, 48 F.3d at 1501. Return to text.

[282] Id. The court further indicated that the "causation" component of standing was satisfied because it is "reasonably probable" that the County would be affected by the critical habitat designation, see id. at n.6, and that redressibility is not important when alleging a procedural injury. See id. at 1501. However, this analysis seems flawed. Causation applies to the alleged procedural violation (the failure to prepare an environmental document under NEPA), not to the substantive decision (the designation of the critical habitat). Otherwise, the case would not involve a procedural injury. Redressibility, aside from the merits of such an inquiry in the first place, is not merely unimportant as the court suggests. See id. Redressibility can be satisfied in a procedural injury case, as here, when the failure to prepare an environmental document can be redressed easily by a court order. See Catron County v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1433 (10th Cir. 1996). For a general discussion of Douglas County, see Erika Johnson, Note, Douglas County v. Babbitt and the New Displacement Exemption: NEPA Loses More Ground, 17 PUB. L. & RESOURCES L. REV. 177 (1996). Return to text.

[283] 94 F.3d 658 (D.C. Cir. 1996) (en banc). Return to text.

[284] See id. at 662. Return to text.

[285] See id. Return to text.

[286] See id. at 663. A panel of the D.C. Circuit would have found standing. See Florida Audubon Soc'y v. Bentsen, 54 F.3d 873 (D.C. Cir. 1995), reh'g en banc granted, Florida Audubon Soc'y v. Bentsen, 64 F.3d 712 (D.C. Cir. 1995). In Florida Audubon Society v. Treasury Department, the Treasury Department asserted that such rules are categorically excluded from NEPA compliance. See Florida Audubon Soc'y, 94 F.3d at 662. Return to text.

[287] Florida Audubon Soc'y, 94 F.3d at 664-65. Return to text.

[288] Id. at 665. Return to text.

[289] See id. at 665-66. Return to text.

[290] See id. at 666. Return to text.

[291] Id. at 667 n.4. Return to text.

[292] See id. at 667. Return to text.

[293] See id. Return to text.

[294] See id. at 667-68. Return to text.

[295] Id. at 668. Cf. People for the Ethical Treatment of Animals v. HHS, 917 F.2d 15, 17 (9th Cir. 1990) (holding that there had been no showing of harm to the area where a geographical nexus arguably existed). Return to text.

[296] See Florida Audubon Soc'y, 94 F.3d at 668. Return to text.

[297] The inquiry into causation was unnecessary in light of the court's holding that the plaintiffs already lacked standing to sue. The discussion, therefore, appears contrived to overrule Los Angeles v. NHTSA, 912 F.2d 478 (D.C. Cir. 1990). See infra notes 300, 303-04 and accompanying text. Return to text.

[298] Florida Audubon Soc'y, 94 F.3d at 668. Return to text.

[299] See id. at 669. The court added, "Not to require that a plaintiff show that its particularized injury resulted from the government action at issue would effectively void the particularized injury requirement." Id. But, as argued later, the answer is not to impose such an illogical standard that essentially requires an inquiry into the merits of the case. Rather the recourse is to abandon the ill-conceived causation requirement in the first place. Return to text.

[300] See id. Return to text.

[301] See id. at 671. Return to text.

[302] The court stated that it does "not defer to the views of . . . Congress or its individual members in determining whether a particular rule will cause injury to a particular plaintiff or as proof of any causal chain necessary for standing." Id. at 670. The majority added that, after Defenders of Wildlife, the decision in SCRAP must be considered an "outlier." See id. at 672. See also Louisiana Envtl. Action Network v. Browner, 87 F.3d 1379, 1383 (D.C. Cir 1996) (making the same observation). Nevertheless, other courts still invoke SCRAP as support that an "identifiable trifle" is enough of an injury. See, e.g., Pilgrim Pub. Interest Lobby v. Dow Chem. Co., No. 95-CV-73286-DT, 1996 WL 903839, at *2 (E.D. Mich. Sept. 25, 1996); see also Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 557 (5th Cir. 1996) (holding that in a CWA case, an "identifiable trifle" is sufficient for Article III standing). In cases brought under the citizen suit provision of the CWA, establishing causation may only require a showing that the defendant discharged pollutants of a type that would cause or contribute toward the alleged injury. See, e.g., Natural Resources Def. Council, Inc. v. Watkins, 954 F.2d 974, 980 (4th Cir. 1992). In Friends of the Earth v. Crown Cent. Petroleum Corp., 95 F.3d 358 (5th Cir. 1996), however, the court distinguished Cedar Point and denied standing to an organization whose members did not use the directly affected waters, but instead used a water body "located three tributaries and 18 miles 'downstream' from" the emitting facility. See id. at 361. The Fifth Circuit held that the plaintiffs had to proffer at least some credible evidence that the members' injuries were fairly traceable to the facility's discharges, other than relying on a truism that water flows downstream. See id. at 361-62. Return to text.

[303] See Florida Audubon Soc'y, 94 F.3d at 673, 675. In a concurring opinion, Judge Buckley also agreed that the majority had inappropriately adopted new criteria for standing, which "will erode the effectiveness of one of the most important environmental measures of the past generation." Id. at 672 (Buckley, J., concurring). Return to text.

[304] 912 F.2d 478 (D.C. Cir. 1990). Return to text.

[305] See id. at 492. Return to text.

[306] Florida Audubon Soc'y, 94 F.3d at 674 (quoting City of Los Angeles, 912 F.2d at 492 (further quoting City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975))). Return to text.

[307] See Florida Audubon Soc'y, 94 F.3d at 674; see also supra note 150 and accompanying text. Return to text.

[308] See Florida Audubon Soc'y, 94 F.3d at 677 (Rogers, J., dissenting). Return to text.

[309] See id. at 679. The dissenters also responded to the causation argument by reviewing the considerable evidence suggesting that the ETBE tax credit would stimulate ethanol production and its accompanying effects. See id. at 680-84. Of course, anyone who has followed the political debate over ethanol would realize that the plaintiffs' claims were not without some significance. Needless to say, the entire discussion appears mired in the merits of whether an EIS should have been prepared and the question of the likely environmental conse quences of the tax credit. See id. Finally, the dissenters indicated that redressibility would be easily solved because the court could order the preparation of an EIS. See id. at 684. Return to text.

[310] 102 F.3d 445 (10th Cir. 1996). Return to text.

[311] See id. at 451-52. Return to text.

[312] See id. at 446. Return to text.

[313] See id. Return to text.

[314] See id. at 446-47. Return to text.

[315] See id. The Forest Service adopted the master plan for the Carson National Forest in 1981 and at that time prepared an EIS. See id. at 446. For the amendment to the plan, however, the Forest Service only prepared an environmental assessment (EA), which the Committee alleged was insufficient. See id. at 446-47. The Committee argued that the approval of the amended master plan required either an EIS or, if the decision reflected a substantial change in the plan, a supplemental EIS. See id. Return to text.

[316] See id. at 450. Return to text.

[317] See id. Return to text.

[318] See id. at 448. Return to text.

[319] Id. Return to text.

[320] Id. at 450. Return to text.

[321] Id. Return to text.

[322] Id. at 451. Return to text.

[323] Id. at 452. Return to text.

[324] Id. at 448-49. Return to text.

[325] Id. at 449. Return to text.

[326] See id. (citing Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), and Catron County v. U.S. Fish & Wildlife Service, 75 F.3d 1429 (10th Cir. 1996) as support). Return to text.

[327] Recast, the court summarized the injury in fact requirement:

the litigant must show that in making its decision without following the National Environmental Policy Act's procedures, the agency created an increased risk of actual, threatened, or imminent environmental harm; and the litigant must show that the increased risk of environmental harm injures its concrete interests by demonstrating either its geographical nexus to, or actual use of the site of the agency action.

[328] See id. at 450-51. Return to text.

[329] See id. Return to text.

[330] See id. at 450. Return to text.

[331] See id. at 450-51. Return to text.

[332] See id. at 451-52. Return to text.

[333] See id. at 451. Return to text.

[334] See id. Return to text.

[335] Id. Return to text.

[336] See id. (citations omitted). Return to text.

[337] Id. at 452. Return to text.

[338] Id. Logically, the court's statement belies its own analysis because the showing of any environmental harm should be equally irrelevant if the injury arises from the failure to ensure an informed decision. Whether or not significant environmental impacts will exist goes to the merits of the claim, not to whether a party can bring the claim. Return to text.

[339] See id. Return to text.

[340] See id. "Compliance with the National Environmental Policy Act would avert the possibility that the Forest Service may have overlooked significant environmental consequences of its action." Id. Return to text.

[341] 102 F.3d 1273 (1st Cir. 1996), cert. denied sub nom., Loon Mountain Recreation Corp. v. Dubois, 117 S. Ct. 2510 (1997). Return to text.

[342] See id. at 1280-83. Return to text.

[343] See id. at 1277. Although deprived of jurisdiction over the CWA issue, the court nevertheless determined that it could decide the CWA issue in the context of reviewing whether the Forest Service had considered all relevant factors in accordance with its obligation under NEPA. See id. at 1295. Therefore, the only significant injury allegedly occurred as a consequence of the asserted NEPA violation. See id. Return to text.

[344] Id. at 1283. Return to text.

[345] See id. at 1281. The references to SCRAP and Warth are curious. The notion that injuries can be shared by many was, as noted earlier, also one of the elements of Sierra Club, and the continued efficacy of SCRAP has been questioned. See supra notes 120-21 and accompanying text; see also supra note 302. In Warth, the Court did not say that an injury could not be common to everyone. See Warth v. Seldin, 422 U.S. 490 (1975). Rather, the Court observed that "when the asserted harm is a 'generalized grievance' shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction." Id. at 499 (citations omitted). Taken at face value, the statement in Dubois may suggest that federal air quality standards that impact us all might be immune from suit, although that clearly was not the court's intent. Return to text.

[346] See Dubois, 102 F.3d at 1281. Return to text.

[347] See id. at 1282-83. Return to text.

[348] Id. at 1283. The court further noted that Dubois' standing was being decided on a motion to dismiss (as in SCRAP) and might not be subject to the same exacting level of scrutiny during a review of a motion for summary judgment. See id. at 1283 n.13. This statement, however, seems somewhat disingenuous. Ostensibly, Article III standing is constitutional and thus jurisdictional, but the court decided the merits of the case because three of the parties had filed motions for summary judgment as well. See id. at 1283-85 (discussing the appropriate standard of review). In addition, the court explained that Dubois' standing was explored beyond the pleading stage during a hearing. See id. at 1282-83. Return to text.

[349] See id. at 1281. The court merely recites part of Defenders' footnote 7 without ever explaining its relevance to the case. See id. at 1281 n.10 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)); see also supra note 341 (explaining that the asserted NEPA violation was the only significant violation because the court lacked jurisdiction over the CWA violation). In Associated Fisheries, Inc. v. Daley, 954 F. Supp. 383 (D. Maine 1997), aff'd, No. 97-1327, 1997 U.S. App. LEXIS 24436 (1st Cir. Sept. 16, 1997), the district court relied upon Dubois to conclude that fishery interests had standing to challenge an action of the Department of Commerce. See id. at 386. Return to text.

[350] Data Processing, 397 U.S. at 154. Return to text.

[351] See id. at 154-57. Return to text.

[352] See id. Return to text.

[353] See Davis, supra note 41, at 450. Return to text.

[354] See Sierra Club, 405 U.S. at 740. Return to text.

[355] See id. Return to text.

[356] See, e.g., Whitmore v. Arkansas, 495 U.S. 149 (1990); Allen v. Wright, 468 U.S. 737 (1984); Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59 (1978); Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976); Warth v. Seldin, 422 U.S. 490 (1975); Linda R.S. v. Richard D., 410 U.S. 614 (1973); see also Clarke v. Securities Indus. Ass'n, 479 U.S. 388 (1987) (clarifying the zone of interests test); Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333 (1977) (articulating when an organization may sue on behalf of its members). Return to text.

[357] See Sunstein, supra note 16, at 1452. Return to text.

[358] Federal Power Act, 16 U.S.C. § 825l(b) (1994); see supra note 36. Return to text.

[359] 950 F. Supp. 1005 (C.D. Cal. 1996). See also supra notes 260-62 and accompanying text. Return to text.

[360] See, e.g., Western Radio Services Co. v. Espy, 79 F.3d 896, 902-03 (9th Cir. 1996); Glickman, 950 F. Supp. at 1012 n.5. Return to text.

[361] See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); see also Inland Empire Pub. Lands Council v. United States Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996) (holding that NEPA ensures a process, not a result). Although the Glickman court stated that "NEPA standing is procedural standing," it failed to address how NEPA's procedural focus relates to the zone of interests test. Glickman, 950 F. Supp. at 1015 n.10. The decision in Glickman is not likely to survive (if it has not already been reversed as of the date of this publication). Return to text.

[362] Some commentators suggest that the policy goals animating the passage of NEPA should be construed as having a substantive effect. See Coleman, supra note 35; Hanks & Hanks, supra note 35; see also James McElfish, Back to the Future, 12 ENVTL. FORUM 14 (Sept./Oct. 1995) (arguing that NEPA should be interpreted as having a substantive component); Ronald B. Robie, Recognition of Substantive Rights Under NEPA, 7 NAT. RESOURCES LAW 387 (1974); Yost, supra note 35. Return to text.

[363] In Plenert, the Ninth Circuit even relied on an earlier NEPA case for its analysis. See Plenert, 63 F.3d at 919-20 (citing Nevada Land Action Ass'n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993) . Return to text.

[364] See Sierra Club, 405 U.S. at 734-35; see also supra notes 64-74 and accompanying text. Return to text.

[365] See Fletcher, supra note 15, at 231-33 (commenting that the injury in fact requirement "is a singularly unhelpful, even incoherent, addition to the law of standing"); Sunstein, supra note 15, at 188-92; Sax, supra note 2. Return to text.

[366] See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1989); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 352 (1989); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972). Return to text.

[367] See Babbitt, 48 F.3d at 1501. Return to text.

[368] See Catron County, 75 F.3d at 1433. Return to text.

[369] See Florida Audubon Society, 54 F.3d at 875; Rio Hondo, 102 F.3d at 452; see also supra notes 286-95 and 323-30 and accompanying text. Return to text.

[370] See, e.g., Seattle Audubon Soc'y v. Espy, 998 F.2d 699, 703 (9th Cir. 1993); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1514 (9th Cir. 1992). Return to text.

[371] In Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir. 1994), for example, the plaintiffs challenged the adequacy of an EIS prepared by the Forest Service to accompany the Service's decision to use herbicides as part of its reforestation program. See id. at 1348. The court emphasized that the plaintiffs had not alleged a mere procedural injury, but had demonstrated a concrete interest, namely, the substantive harm that might occur from the use of the herbicides. See id. at 1354-55. The court, therefore, concluded that the plaintiffs "have a concrete interest apart from their interest in having procedure observed." Id. at 1355 n.14. The concrete interest was a geographical nexus or actual use of the area affected by the herbicides. See id. at 1355. The court's analysis focused on the harm that might occur from the agency's substantive decision, not from the harm that may occur as a result of the alleged procedural violation, but the analysis shifted focus when the court added that "[s]peculation that the application of herbicides might not occur is irrelevant. 'The asserted injury is that environmental consequences might be overlooked,' as a result of deficiencies in the government's analysis under environmental statutes." Id. (citations omitted); see also Sierra Club v. USACE, 935 F. Supp. 1556, 1571 (S.D. Ala. 1996) (disagreeing with the characterization of the plaintiff's injury as procedural, stating that "the plaintiffs allege environmental and aesthetic losses which, they claim, would not have been sustained had the proper procedures been followed. Thus, it is not the procedures themselves, but the effect of the Corps' alleged divergence from such procedures" that is being challenged). Return to text.

[372] See, e.g., Rio Hondo, 102 F.3d at 450-51; Catron County, 75 F.3d at 1433; Douglas County, 48 F.3d at 1501; Sierra Club v. Marita, 46 F.3d 606, 612-13 (7th Cir. 1995); Salmon River, 32 F.3d at 1355; Seattle Audubon Soc'y, 998 F.2d at 703; see also Sierra Club v. Pena, 962 F. Supp. 1037 (N.D. Ill. 1997). Return to text.

[373] See, e.g. Dubois, 102 F.3d at 1283; Rio Hondo, 102 F.3d at 448-51; National Wildlife Fed'n v. Espy, 45 F.3d 1337, 1341 (9th Cir. 1995); Portland Audubon Soc'y v. Babbitt, 998 F.2d 705, 708 (9th Cir. 1993); Seattle Audubon Soc'y, 998 F.2d 699, 703 (9th Cir. 1993); Friends of the Earth v. United States Navy, 841 F.3d 927, 931-32 (9th Cir. 1988); Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 491 (9th Cir. 1987); Southwest Ctr. for Biological Diversity v. FERC, 967 F. Supp. 1166, 1171 (D. Ariz. 1997); Swan View Coalition, Inc. v. Turner, 824 F. Supp. 923, 929-30 (D. Mont. 1992). The same is generally true for other types of environmental cases. See, e.g., Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065 (9th Cir. 1997) (challenging the legality of commercial fishing in Glacier Bay, with the organizational members' recreational and aesthetic experience affected by the fishing); Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 555-58 (5th Cir. 1996) (bringing a citizen suit under the CWA, where plaintiff's members used the allegedly affected waters, and two of the members also lived near the waters); Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1581-82 (9th Cir. 1993) (finding standing where the project threatened the red squirrel and the plaintiff's members enjoyed observing the red squirrel in its natural habitat); Didrickson v. Department of the Interior, 982 F.2d 1332 (9th Cir. 1992) (bringing a challenge to a regulation under the Marine Mammal Protection Act of 1972, where the chal lenging party had an interest in the observation and study of sea otters in Alaska); Sierra Club v. Tri-State Generation & Transmission Ass'n, 173 F.R.D. 275 (D. Colo. 1997) (suing plaintiff challenged the defendant under the citizen suit provision of the CAA, where plaintiff alleged that its members lived, worked, and recreated in the area and their ability to breathe clean air and view the surroundings would be adversely affected); Ross v. Federal Highway Admin., No. 97-2132-GTV, 1997 U.S. Dist. LEXIS 11917 (D. Kan. July 17, 1997) (claiming plaintiffs adjacent land would be affected); Pilgrim Pub. Interest Lobby v. Dow Chem. Co., No. 95-CV-73286-DT, 1996 WL 90389, at *2, *3 (E.D. Mich. Sept. 25, 1996). Conservation groups have been able to maintain a CWA citizen suit even in the absence of any serious environmental harm. See, e.g., Friends of the Earth v. Laidlaw Envtl. Serv., 956 F. Supp. 588 (D.S.C. 1997). In Cedar Point, for instance, the Fifth Circuit expressed little interest in examining whether any harm actually existed, observing that the plaintiff's members were sufficiently "concerned" and that there was a sufficient threat of future injury. See Cedar Point, 73 F.3d at 556-57; see also supra note 302. However, in Public Interest Research Group, Inc. v. Magnesium Elektron, 123 F.3d 111 (3d Cir. 1997), the Third Circuit reconsidered the issue of standing after the lower court concluded that the defendant's CWA violation did not pose a threat to the body of water that plaintiffs' members used. See id. at 117-23. The court accepted that the members used the water body and that the defendant violated the Act, but it required the members, through the organization, to show that the defendant's conduct caused injury to the waterway. See id. at 119-23. Return to text.

[374] See Florida Audubon Soc'y, 94 F.3d at 667-69. Return to text.

[375] See id. Return to text.

[376] 936 F. Supp. 13 (D.D.C. 1996). Return to text.

[377] See id. at 16-18. Return to text.

[378] See id. at 18. Return to text.

[379] See Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1235 (D.C. Cir. 1996). Return to text.

[380] In Babbitt, for instance, the court specifically commented that "[t]he district court was correct to equate the 'geographic nexus' test of past Ninth Circuit cases with the 'concrete interest' test of Lujan." Babbitt, 48 F.3d at 1501 n.5. Return to text.

[381] See Defenders of Wildlife, 504 U.S. at 564; see also supra note 154 and accompanying text. Return to text.

[382] See supra note 154 and accompanying text. Return to text.

[383] See generally Michael J. Gippert & Vincent L. DeWitt, The Nature of Land and Resource Management Planning Under the National Forest Management Act, 3 THE ENVTL. LAW. 149 (1996) (discussing land use plans adopted by the Forest Service); John P. Hogan, Note, The Legal Status of Land and Resource Management Plans for the National Forests: Paying the Price for Statutory Ambiguity, 25 ENVTL. L. 865 (1995); Jack Tuholske & Beth Brennan, The National Forest Management Act: Judicial Interpretation of a Substantive Environmental Statute, 15 PUB. LAND L. REV. 53 (1994); Charles F. Wilkinson & H. Michael Anderson, Land and Resource Planning in the National Forests, 64 ORE. L. REV. 1 (1985). Return to text.

[384] See generally Beth Brennan & Matt Clifford, supra note 15 (discussing standing to challenge these land use plans); Paul A. Garrahn, Note, Failing to See the Forest For the Trees: Standing to Challenge National Forest Management Plans, 16 VA. ENVTL. L.J. 145 (1996); Kelly Murphy, Cutting Through the Forest of the Standing Doctrine: Challenging Resource Management Plans in the Eighth and Ninth Circuits, 18 U. ARK. LITTLE ROCK L.J. 223 (1996); Miles A. Yanick, Note, Loss of Protection As Injury in Fact: An Approach to Establishing Standing to Challenge Environmental Planning Decisions, 29 U. MICH. J.L. REF. 857 (1996). Return to text.

[385] See, e.g., Sierra Club v. Marita, 46 F.3d 606 (7th Cir. 1995); Resources, Ltd., Inc. v. Robertson, 8 F.3d 1394 (9th Cir. 1993); Portland Audubon Soc'y v. Babbitt, 998 F.2d 705 (9th Cir. 1993); Seattle Audubon Soc'y v. Espy, 998 F.2d 699 (9th Cir. 1993); Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992). The Seventh Circuit correctly responded that "[o]nce the plan has passed administrative review, the procedural injury has been inflicted. Unless a plaintiff's purported interest in the matter is wholly speculative, waiting any longer to address that injury makes little sense." Marita, 46 F.3d at 612. This issue will likely get resolved by the Supreme Court in Sierra Club v. Thomas, 105 F.3d 248 (6th Cir. 1997), cert. granted sub nom., Ohio Forestry Ass'n, Inc. v. Sierra Club, 66 U.S.L.W. 3296 (U.S. Oct. 20, 1997) (No. 97-16), where standing and ripeness were considered almost in the same breath, with the court concluding that the challenge to the plan was justiciable. See id. at 250. Also, in Citizens for a Better Environment v. Steel Co., 90 F.3d 1237 (7th Cir. 1996), cert. granted, Steel Co. v. Citizens for a Better Environment, 117 S. Ct. 1079 (1997), the Court may address whether Congress can confer standing on citizens to sue for wholly past violations of the Emergency Planning and Community Right-to-Know Act of 1986, in circumstances where the plaintiff has not alleged any current or future injury in fact. Return to text.

[386] See Sierra Club v. Robertson, 28 F.3d 753, 759 (8th Cir. 1994). Return to text.

[387] See id. Return to text.

[388] Wilderness Soc'y v. Alcock, 83 F.3d 386, 389-90 (11th Cir. 1996). The court added that the confusion between the two doctrines is not surprising because "[b]oth doctrines focus initially on the injury to the person bringing the action." Id. at 390. A requirement for imminence in the likelihood of the environmental effects is more appropriately addressed where the plaintiff has sought injunctive relief or where a particular statute requires an imminent and substantial endangerment to health or the environment. See, e.g., Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781 (9th Cir. 1995); Dague v. City of Burlington, 935 F.2d 1343, 1355 (2d Cir. 1991); Chemical Weapons Working Group, Inc. v. United States Dep't of the Army, 935 F. Supp. 1206, 1216 (D. Utah 1996), aff'd, 111 F.3d 1485 (10th Cir. 1997); Loggerhead Turtle v. Volusia County Council, 896 F. Supp. 1170 (M.D. Fla. 1995), appeal pending; Village of Wilsonville v. SCA Serv., Inc., 426 N.E.2d 824 (Ill. 1981). Return to text.

[389] See Defenders of Wildlife, 504 U.S. at 572-73; see also supra notes 167-69 and accompanying text. Return to text.

[390] The Robertson Court observed that compliance with procedures is "almost certain to affect the agency's substantive decision." Robertson, 490 U.S. at 350. Return to text.

[391] Committee to Save the Rio Hondo v. Department of Agric., 102 F.3d 445, 450-51 (10th Cir. 1996). Return to text.

[392] See Rio Hondo, 102 F.3d at 451-52. Return to text.

[393] See id. Return to text.

[394] See Marita, 46 F.3d at 613 ("To the extent that the Sierra Club suffered a procedural injury, it is directly tied to an underlying, particularized interest."). Return to text.

[395] When a plaintiff is not alleging injury from an increased risk of environmental harm, causation and redressibility become even more problematic. See Baca v. King, 92 F.3d 1031, 1037 (10th Cir. 1996); Mount Evans Co. v. Madigan, 14 F.3d 1444, 1451 (10th Cir. 1994) (economic interest challenging Forest Service decision not to rebuild a structure on Forest System lands); Wyoming v. Lujan, 969 F.2d 877, 881-82 (10th Cir. 1992) (challenge to an exchange transaction when injury was economic); Desert Citizens Against Pollution v. Bisson, 954 F. Supp. 1430 (S.D. Cal. 1997) (challenge to land exchange); Lodge Tower Condominium Ass'n v. Lodge Properties, Inc., 880 F. Supp. 1370, 1381 (D. Colo. 1995), aff'd, 85 F.3d 476 (10th Cir. 1996); see also Earth Island Inst. v. Christopher, 913 F. Supp. 559, 564-65 (Ct. Int'l Trade 1995) (Georgia Fishermen's Association's economic interests not sufficient to press ESA issue). Return to text.

[396] For example, in Sierra Club v. Marita, the court indicated that redressibility was not an issue. See Marita, 46 F.3d at 613 n.4; see also supra notes 270-272 (discussing Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995)). See generally Gatchel, supra note 253, at 100-05. Return to text.

[397] See Portland Audubon Soc'y v. Babbitt, 998 F.2d 705, 708 (9th Cir. 1993); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1517-18 (9th Cir. 1992); Colorado Envtl. Coalition v. Lujan, 803 F. Supp. 364, 369 (D. Colo. 1992); see also Florida Audubon Soc'y v. Bentsen, 94 F.3d 658, 684 (D.C. Cir. 1996) (Rogers, J., dissenting). Return to text.

[398] In Mountain States, for instance, the court responded in the following manner to the argument that the plaintiffs' economic injury would not be redressed if the agency, in this case, were forced to follow the law because plaintiffs had no legal interest in any specific outcome in the agency decisionmaking process:

We need not resolve this conflict here. So far as appears no court in the modern era has treated a garden-variety substantive defect in plaintiffs' claim as defeating redressibility. Unlike [other situations], the alleged impediment to redress stems not from a defect in the court's institutional power to order a specific remedy but merely from the interplay of various statutes bearing on the substantive validity of the Forest Service decision. Assuming that purely legal remedial gaps can establish a lack of redressibility, the substantive impact of the ESA is not a remedial gap at all; to treat it as an impairment of redressibility would seemingly allow any merits defect in plaintiffs' claim to defeat their standing. Accordingly the ESA's substantive provisions are irrelevant on this point.

[399] See City of Klamath Falls, Oregon v. Babbitt, 947 F. Supp. 1, 5 (D. D.C. 1996). Return to text.

[400] In NEPA, Congress declared that it was this nation's policy, in part, to "encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation." National Environmental Policy Act of 1969 § 102 , 42 U.S.C. § 4321 (1994). Elsewhere, Congress declared it a national goal to eliminate the discharge of pollution into the nation's waters by 1985. See 33 U.S.C. § 1251(a)(1) (1994). The 1970 Clean Air Amendments were equally ambitious in establishing timetables, e.g., Clean Air Amendments of 1970 § 304, Pub. L. No. 91-604, § 6, 84 Stat. 1676, 1690 (1970) (mobile emissions), with the goal of protecting and enhancing the quality of the nation's air resources. See 42 U.S.C. § 7401(b)(1) (1994). In the ESA, Congress declared that the species being protected "are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people." Endangered Species Act, 16 U.S.C. § 1531(a)(3) (1994) (emphasis added). Return to text.

[401] See RACHAEL CARSON, SILENT SPRING (1962). Return to text.

[402] Oregon Natural Resources Council, Inc. v. Kantor, 99 F.3d 334, 339 (9th Cir. 1996). Return to text.

[403] For instance, how does one establish harm from the EPA's decision on the appropriate level for particulate matter under the Clean Air Act, when the debate is over the science surrounding the level of harm? See Robert Yuhnke, Particles of Concern, 14 ENVTL. FORUM 24 (Mar./Apr. 1997). Perhaps because air quality is perceived to affect us all, standing to challenge federal air quality decisions is not typically an issue. See, e.g., Environmental Defense Fund v. EPA, 82 F.3d 451 (D.C. Cir. 1996) (challenge to EPA's Transportation Conformity Rule). But cf. Louisiana Envtl. Action Network v. Browner, 87 F.3d 1379, 1382-83 (D.C. Cir. 1996). However, not all diffuse harms are so easily perceived. Judge Posner, for example, once called an alleged right to view wildlife as a "diffuse and impalpable deprivation." Village of Elk Grove Village v. Evans, 997 F.2d 328, 329 (7th Cir. 1993). In Humane Society v. Babbitt, the D.C. Circuit illustrated the difficulty with establishing standing when there is no identifiable harm to a specific place or use of an area. See Humane Soc'y, 46 F.3d at 93. The Humane Society challenged an interpretation of the ESA that would allow an endangered Asian elephant from being transported interstate or abroad. See id. at 95. The elephant already had been transferred from a zoo to a corporation that apparently intended to make the elephant into a circus animal, and the company needed a certificate from the USFWS in order to transport the elephant. See id. The Society challenged the issuance of the certificate exempting the company from the ESA's prohibition on transport. See id. The Society sought to establish harm through one of its members who had visited the zoo and would be harmed by losing the opportunity to study Asian elephants generally. The Society also asserted that harm could be established by others who lamented the lost opportunity to observe the elephant at the zoo. See id. at 97-99. Although the court did not foreclose the possibly in another case, the court observed that the Society had not shown how the loss of this one particular elephant threatened the ability to observe and study Asian elephants generally, particularly considering the Society did not assert that its members intended to return to the zoo. See id. The court also rejected the Society's claim of procedural injury, indicating that the injury must result from the denial of the statutorily proscribed procedure and held that in this case it did not. See id. at 99. The court then added that the plaintiffs failed to satisfy the requirements for causation and redressibility because the zoo already had donated the elephant, and neither the harm nor the relief related to the elephant's return to the zoo. See id. at 100-01; see also Citizens to End Animal Suffering & Exploitation v. New England Aquarium, 836 F. Supp. 45 (D. Mass. 1993).

Dr. Robin Silver, a committed advocate for the protection of endangered species, was granted intervention as of right in an ESA challenge by a coalition of counties to the listing of the Mexican Spotted Owl, in a case involving a professional and vocational interest in certain species. See Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Babbitt, 100 F.3d 837 (10th Cir. 1996). Dr. Silver's interest in the litigation was that he had photographed and studied the owl in the wild and had a persistent record of advocacy for its protection. See id. at 839, 841. Using the doctrine of standing to decide whether to grant intervention, the court indicated that "Dr Silver's interest in the Owl is legally protectable . . . ." Id. at 841. The court stated that Defenders of Wildlife specifically recognized that the desire to use or observe animal species is a cognizable interest for purpose of standing. See id. Of course, these same interests could apply to virtually all environmental organizations and their members; the analysis, therefore, avoids the issue of whether the legally cognizable interest is joined with a showing of individualized injury. See id.; see also Fund for Animals v. Babbitt, 89 F.3d 128, 134 (2nd Cir. 1996) (in a challenge to a moose hunt program, defendant did not challenge plaintiff's asserted professional, recreational, aesthetic and information interest or plaintiff's interest in receiving and commenting upon information as part of NEPA compliance as an injury in fact); Earth Island Inst. v. Christopher, 913 F. Supp. 559, 568-72 (Ct. Int'l Trade 1995). Return to text.

[404] Sax, supra note 2, at 88. Return to text.

[405] See supra note 103 and accompanying text. Return to text.

[406] See supra note 75 and accompanying text. Return to text.

[407] See Light v. United States, 220 U.S. 523, 537 (1911) ("All the public lands of the nation are held in trust for the people of the whole country.") (quoting United States v. Trinidad Coal & Coking Co., 137 U .S. 160 (1890)). Return to text.

[408] People, for instance, may "feel the need for pristine places, places substantially unaltered by man. Even if we do not visit them, they matter to us. We need to know that though we are surrounded by buildings there are places where the world goes on as it always has." BILL MCKIBBEN, THE END OF NATURE 55 (1989). Congress and the American public endorsed this notion in the Wilderness Act, 16 U.S.C. §§ 1131-1136 (1994). For a further discussion of the concept of standing to preserve interests for future generations, see Raymond A. Just, Note, Intergenerational Standing Under the Endangered Species Act: Giving Back the Right to Biodiversity After Lujan v. Defenders of Wildlife, 71 TUL. L. REV. 597 (1996). Return to text.

[409] In these situations, "the legal questions presented to the court will be resolved, not in the rarefied atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 472 (1982). Return to text.

[410] See, e.g., Flast v. Cohen, 392 U.S. 83, 96-97 (1968) (discussing advisory opinions). The Court has been less than careful in transplanting standing analysis from cases involving constitutional disputes to those involving alleged violations of statutory programs. In non-environmental cases, the Court typically articulated its concern with deciding cases involving "abstract" injuries and "generalized grievances," sometimes denying standing on the grounds that the claim of injury was not judicially cognizable. See, e.g., Allen v. Wright, 468 U.S. 737, 754-55 (1984). In environmental cases, however, the Court usually has accepted that the injury is judicially cognizable, and thus, the need for any further requirement should have been unnecessary. Return to text.

[411] It may well be that some showing of individualized injury is necessary to justify implying a cause of action under a constitutional provision. See Fletcher, supra note 15, at 265-72, 280. Return to text.

[412] See Sunstein, supra note 15, at 170-80. Return to text.

[413] Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992). Return to text.

[414] Fletcher, supra note 15, at 223-24. Return to text.