Environmental Law Professor Robert Glicksman



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Part of a broader federal program to conserve valuable sources of wildlife important to the welfare of the nation as a whole. Congress may enact a regulatory program whose efficacy is undercut by purely intrastate activities. This is why Congress may regulate such intrastate activities.

  • Note – Court first determined that taking of red wolves was an economic activity and second aggregated its effects.

  • Regulation on killing red wolves on private land is necessary because so many wolves wander onto private land.

  • Regulation also survived because it was “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.”

    1. “A complex regulatory program can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.”

  • Area of Traditional State Concern – Congress did not infringe because it can regulate even private land use for environmental and wildlife conservation.

    1. See pp. 97–99.

  • Cited Race to the Bottom as a justification for federal regulation.

  • San Luis v. Salazar, 638 F.3d 1162 (9th Cir. 2011).

    1. ESA is not likely to be struck down as beyond the scope of Congress’ authority under the Commerce Clause.

  • Gonzales v. Raich (2006)

    1. Facts – Concerned growing of medical marijuana for private use in CA.

    2. Concerned regulation of activities having a substantial effect on interstate commerce.

    3. Endorses aggregation of Wickard v. Filburn.

    4. Congress cannot excise individual instances of the regulated activity once it has determined that it is within its power to regulate.

  • Legislative Findings

    1. Courts sometimes require and sometimes do not require legislative findings for Congress to regulate under its commerce power.

    2. See pp. 103–05.

  • SWANCC v. U.S. Army Corps of Engineers (2001)

    1. Facts – Concerned whether CWA governed pools in sand and gravel pit that migratory birds had used.

    2. Court invoked Clear Statement Rule to hold that the Migratory Bird Rule did not allow the federal government to assert authority under the CWA over the ponds at issue.

      1. Rule of statutory construction.

      2. Authority that pushes to the limits of federal power will not be interpreted by the Supreme Court as such unless Congress has clearly indicated that it intends to push the boundary of congressional power.

      3. This is a way for courts to exercise self-restraint. Court is reluctant to invalidate statutes enacted by Congress. It does not want to resort to anti-democratic judicial review unless absolutely necessary.

        1. Thus, the Court wants to avoid addressing constitutional questions. It interprets statutes so as not to reach constitutional questions.

  • Rapanos v. United States (2006)

    1. Facts – Concerned interpretation of “waters of the U.S.” in CWA.

    2. “Regulation of land use, as through the issuance of the development permits, is a quintessential state and local power.”

    3. Invoked Clear Statement Rule, requiring a “clear and manifest” statement from Congress to authorize an unprecedented intrusion into an area of traditional state authority.

      1. Court found no such clear statement.

    4. Kennedy, Concurring – Reached the same conclusion as the plurality, but for entirely different reasons.

      1. His test was more expansive than Scalia’s, which he characterized as under- and over-inclusive.

  • New York v. United States (1992)

    1. Facts – Concerned low-level radioactive waste. Only three states had adequate disposal sites, and Congress was unhappy with this. Congress thus passed a statute to generate additional disposal facilities in the other 47 states. Other 47 states had to either construct disposal sites or join in interstate compacts to construct disposal sites.

    2. Constitutional Questions About Three Incentives

      1. Monetary

        1. Upheld as supported by commerce power, taxing power, and spending power.

        2. Endorsed first model of 10th Amendment. [See above.]

      2. Access

        1. Upheld by Congress’ ability to waive the prohibition on discrimination in interstate commerce.

        2. Endorsed first model of 10th Amendment. [See above.]

      3. Take Title Provision

    3. 10th Amendment Test – States must have a legitimate choice of going along with the federal mandate. Congress cannot coerce states into the federal mandate. Congress cannot commandeer the mechanisms of state government to execute a federal program.

      1. What is wrong with federal commandeering or coercion? Court offers a political process rationale. State public may become angry at program and will direct its ire at state legislators when it should direct its ire at Congress. Court is concerned with avoiding this blurred accountability.

    4. Take Title Provision – Invalidated.

      1. Coercion – States had no legitimate choice not to participate in the federal regulatory program. Take title provision crosses the line between permissible encouragement and coercion or commandeering.

      2. Congress lacked authority to adopt either alternative in the take title provision. The choice therefore is a false choice.

        1. Congress cannot force states to take title to low-level radioactive waste.

        2. Congress cannot force states to expend money regulating low-level waste as directed by Congress.

      3. Key Difference from Access Incentives – Adverse incentives of access incentives are borne by waste generators. Adverse incentives of take title provisions are borne by states themselves.

      4. More closely endorses second model of 10th Amendment. [See above.]

        1. However, O’Connor hedges on this point. See last sentence of section III.C (p. 118).


    Sovereign Immunity


    1. See pp. 120–23; Thomas’ notes from 9/28/11.

    2. Main obstacle to holding states accountable for environmental law violations.

    3. This primarily comes from 11th amendment – on its face quite limited

      1. Only bars suits against a state by citizens of another state

        1. Yet, SCT has held that states are immune even to suits brought by own citizens

      2. Second, whatever prohibtions and immunity are provided by this extended only to judicial power of US – seems like only fed courts

        1. Yet, SCT held it extends to state courts as well.

      3. SCT held that Cong lacks the power to abrogate sovereign immunity via commerce clause

      4. also held that Cong can’t abrogate state sovereignty under ANY of its Art. I powers


    Savings Clauses


    1. Congress often enlists the assistance of the states to implement federal environmental laws.

      1. Additionally Congress often preserve right of states to adopt more stringent environmental laws.

      2. Typically in the nature of “Savings Clause” – can apply either to statutory enactments by states, common law remedies, or both

      3. Think about Int’l paper co. case – 1365e savings clause of CWA


    Preemption


    1. Sometimes though Congress tries to limit authority of states

      1. Usually does this to avoid multiple and conflicting standards/obligations, need for uniform set of obligations nationwide

      2. Congress does this via pre-emption, authority comes from Supremacy Clause.

    2. Two Kinds of Preemption

      1. Express Preemption

        1. Clear language in statute.

        2. Issues that arise:

          1. How broad is preemption?

          2. Is challenged action w/in the scope of state laws that Cong intended to preempt with federal statute?

        3. Engine Manufacturers Association v. South Coast Air Quality Management District (2004).

          1. See Thomas’ notes.

      2. Implied Preemption: 2 kinds

        1. Note – Most environmental law preemption cases involve implied preemption, and most involve conflict preemption.

        2. Field Preemption – Occurs when fed leg in a particular area is so pervasive that congress could not have intended to permit any supplemental state or local regulation, whether the regulation is more or less stringent than the fed legislation

          1. Key Issues – how the court defines the scope of the field and whether the statute or reg being attacked falls w/in the parameters

          2. Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n (1983).

            1. See E&E 168; Thomas’ notes.

        3. Conflict Preemption

          1. 1) A state or local reg conflicts w/ fed law if it is impossible to comply with both federal and state law

          2. 2) A state or local regulation also conflicts with fed law if its implementation is inconsistent with the objectives of federal legislation.


    Dormant Commerce Clause


    1. Arise most often from state or municipal efforts to control and handle waste. Usually, the law will preclude interstate commerce in some way.

    2. State and local laws may be struck down because of their adverse impact on interstate commerce.

    3. United Haulers v. Oneida-Herkimer S.W.M.A. (2007)

      1. Facts – Concerned NY flow control ordinance requiring all solid waste created within the jurisdiction to be processed at a publicly owned facility before being disposed of.

      2. Test for DCC Violation – “To determine whether a law violates the so-called "dormant" aspect of the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, a court first asks whether it discriminates on its face against interstate commerce. In this context, "discrimination" simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter. Discriminatory laws motivated by simple economic protectionism are subject to a virtually per se rule of invalidity, which can only be overcome by a showing that the state has no other means to advance a legitimate local purpose.”

      3. Carbone – Here, it was a public rather than a private operator, as was the case in Carbone.

      4. Court upheld the flow-control ordinance. Laws that benefit instate private business reflect economic protectionism. E.g., a law might require that all waste be processed at an instate facility before being deposited.

        1. Why is public ownership of an exclusive disposal facility less objectionable?

          1. Perhaps it is a traditional state function.

          2. No private business could get involved—whether it was instate or out-of-state. All private businesses were precluded. No discrimination against out-of-staters.

          3. Laws that favor local governments appear to be directed toward legitimate goals unrelated to protectionism.

        2. Adverse consequences if we treat public and private business the same with respect to the Dormant Commerce Clause

          1. DCC is not supposed to function as a means for the federal government to determine which functions are the province of traditional state sovereignty.

          2. Court held that waste disposal is a traditional government function.

            1. Alito, Dissenting – Determining which areas are traditional government functions is a hopeless endeavor.

      5. Court applied the Pike v. Bruce Church Balancing Test

        1. Pike v. Bruce Church Balancing Test – Is law directed at legitimate local concerns, and does it have only incidental effects on interstate commerce? Law is valid only if the putative local benefits are not outweighed by the burden on interstate commerce. Burden on interstate commerce must be clearly excessive.

        2. Balancing test favored the constitutionality of the ordinance.

      6. Scalia, Dissenting

        1. Does not believe in DCC jurisprudence but would not overturn it.

      7. Thomas, Dissenting

        1. Would scrap all DCC jurisprudence.

      8. Alito, Dissenting

        1. Market Participant Doctrine – Only when the government is acting as a participant and not a regulator in the market do DCC rules apply. Alito believed that in this case it was acting as both a participant and a regulator.

        2. No reason to distinguish between public and private ownership of a flow control facility.

        3. It does not matter whether the flow-control ordinances were designed to serve legitimate purposes. Even if the goals of a policy are not discriminatory, if the means used to achieve it are, then it may fall afoul of the DCC. E.g., counties could have achieved their goals by adopting uniform air-quality standards that were applicable to all actors.


    Administrative Law Issues


    1. Introduction

      1. Administrative law sets the ground rules for how administrative agencies interact with the three branches of government and the public.

      2. Environmental/Administrative Law – Much of environmental law is administrative law. Field of administrative law is vast, and environmental law is a small portion of it. However, most environmental law is administrative law.

      3. Two Questions of Administrative Law – See p. 143.

        1. What is the proper role of each of the three branches of government in the administrative law process?

        2. What procedures must agencies follow when they adopt, implement, and enforce administrative law?

        3. Third Overarching Question – How are unelected officials held accountable to the public?

          1. Constitution says nothing—or almost nothing—about administrative agencies.

      4. Standing for Environmental Plaintiffs

        1. 1970s – Not an issue.

        2. 1990s – Perhaps an obstacle once again. See Lujan I (1990).

      5. Even if standing is satisfied, courts must be willing to review agency actions seriously.

    2. Roles of Three Branches of Government

      1. Congressional Tools to Oversee Agencies – See p. 144.

        1. Create agencies to implement statutory programs that Congress lacks the time/expertise to implement itself.

        2. Non-Delegation Doctrine – Delegates all powers to agencies via statute. Agencies have no inherent authority.

          1. See E&E 42–43.

        3. Ultra Vires Doctrine – Agencies that act outside of their statutory authority are acting ultra vires. SWANCC.

          1. See E&E 43.

        4. Limits on Agencies

          1. Narrow delegation of authority.

          2. Threatening to cut agency’s appropriations.

          3. Amend statute to reduce scope of agency’s discretion.

      2. Executive Oversight – See p. 144.

        1. Most agencies exist within the executive branch.

          1. Some are independent, but others are executive-branch agencies. Difference turns on the degree of presidential control, e.g., how easy it is for the president to fire agency members. It is more difficult for the president to fire the head of the SEC (independent agency) than the EPA (executive-branch agency).

        2. Limits on Agencies

          1. Appointment Power

          2. Removal Power

          3. Executive Orders – Documents that control the internal functioning of the executive branch, including administrative agencies.

          4. Clearance by White House

      3. Federal Courts

        1. Have responsibility to oversee functioning of administrative agencies. Could determine that agency action substantively violated Constitution; that agency acted outside its authority; that agency acted without providing adequate explanation thereof; or that agency failed to follow proper procedures.

          1. Procedures may come from organic statutes or constitutionally required procedures.

        2. Courts usually defer to agency expertise. A federal judge cannot be as well versed in the scientific concepts with which agency officials deal.

        3. Courts are more or less deferential depending on the context. Depends on particular judge and his or her own perceptions. Depends on time and place and political context.

    3. Rulemaking & Adjudication

      1. Agencies act through two procedures: rulemaking and adjudication.

        1. Four Main Types – Formal and informal rulemaking and adjudication.

        2. Formal procedures are more onerous.

      2. Rulemaking

        1. General in effect.

        2. More analogous to legislation.

        3. May be formal or informal.

      3. Adjudication

        1. Particular in effect.

        2. Analogous to trial-type decision-making. Entails power to enforce regulations.

        3. May be formal or informal.

      4. Informal Rulemaking [Most Relevant for Us]

        1. Sometimes called “notice and consent” rulemaking.

        2. Procedure for Informal Rule-Making

          1. See E&E 46–47; Salzman 60–65.

          2. Must publish notice in Federal Register. This opens up the rules for public comment (Public Comment Period).

          3. Agency must consider and respond to comments.

          4. Agency must publish regulations in Federal Register with an explanation as to why it reached its decision and responses to prominent issues.

    4. Standing

      1. See E&E 50–57; Salzman 79–84.

      2. Exam Tips

        1. On a standing question, address both constitutional and statutory standing.

      3. Background

        1. Litigants must have access to federal courts.

      4. Three Bodies of Standing Law

        1. Constitution – Article III, Case or Controversy Clause; Article II, Take Care Clause somewhat

        2. Statutory – Imposed by Congress

        3. Prudential – Judge-created

      5. Duel Standing Concerns – See Massachusetts v. EPA.

        1. Functional – Adversarial system.

        2. Separation of Powers – Not infringing on political branch determinations.

      6. Issues with Public Interest Groups

        1. Public interest groups frequently sue agencies for failing to live up to their statutory mandates.

        2. Standing issues arise most often when plaintiffs are public interest groups.

        3. Contract or property rights provide clear bases for standing for most groups, but the case of public interest groups is more complicated.

        4. Citizen-Suits – Allow public interest groups to bring suits.

        5. Importance of Citizen Access to Federal Courts

          1. Helps force agencies to do what Congress intended, i.e., account for potential environmental consequences or comply with their statutory responsibilities.

        6. Administrative Procedure Act (APA) amounts to a waiver of federal government’s sovereign immunity.

        7. Associational Standing – An association may sue on behalf of its members.

          1. See p. 165.

      7. Standing increasingly is an obstacle for environmental plaintiffs.

        1. Major Obstacles to Standing – Satisfying:

          1. Injury to common law or statutory legal interest.

            1. Courts used to require harm to a legally protected interest, i.e., harm to a constitutional, statutory, or common law right.

              1. Regulated entities have little trouble showing this.

              2. Environmental groups have trouble showing this.

              3. Thus, standing precedent favored regulated entities before Sierra Club v. Morton (1972).

          2. Case or Controversy requirement of Art. III.

        2. Environmental cases almost always involve some kind of threshold access issue.

      8. Sierra Club v. Morton (1972)

        1. Sued under § 10 of the APA, 5 U.S.C. § 702: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”

        2. Case turned on “adversely affected or aggrieved” language. Sierra Club had failed to show that it would be adversely affected or aggrieved.

        3. Two-Part Standing Test Under § 702 – See p. 146.

          1. Injury in Fact

            1. Even though categories of injuries have widened [see below], actual injury is still required.

          2. Interest arguably within the zone of interest protected by the statute that the agency was violating.

        4. Sufficient Injuries

          1. Economic injuries.

          2. Non-economic, e.g., aesthetic, injuries.

          3. Widely shared injuries. Fact that environmental injuries are shared by the many, rather than the few, does not make them less deserving of legal protection through the judicial process.

        5. Asserting Public Interest

          1. “The fact of economic injury is what gives a person standing to seek judicial review under the statute, but once review is properly invoked, that person may argue the public interest in support of his claim that the agency has failed to comply with its statutory mandate.”

            1. Requires actual injury first.

          2. “An organization whose members are injured may represent those members in a proceeding for judicial review. But a mere interest in a problem, no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization adversely affected or aggrieved within the meaning of the Administrative Procedure Act, 5 U.S.C.S. § 701, et seq.”

            1. Mere interest in a problem is not enough; organization must be able to show actual and individualized injury.

      9. SCRAP I (1973)

        1. Facts - If ICC charges a higher rate for recycled materials, private entities will use virgin materials more than they will use recycled materials. This will disincentivize the use and recycling of recyclable materials. Student group argued that they go hiking in a park every year and that, next year, because of this rate hike, they expected to see more trash. This anticipated injury was the alleged harm.

        2. Holding

          1. Found standing.

          2. Line of causation was not too attenuated.

          3. Mere allegation of remote and attenuated injury (that would occur is tax hike continued) was sufficient to establish standing.

          4. If government had a problem with the chain of inference, it should have brought this up at the summary judgment stage.

      10. Lujan v. National Wildlife Federation (Lujan I) (1990)

        1. Found no standing.

        2. Sued under § 10 of the APA, 5 U.S.C. § 702.

        3. Court reversed for two reasons:

          1. Geographical Proximity Test

          2. 5 U.S.C. § 704

        4. Geographical Proximity Test

          1. In an environmental case, there must be a geographical nexus or geographical proximity between the particular resources allegedly injured by the agency’s decision and the areas of land used by the plaintiff or its members; and

          2. The injury is arguably within the zone of interest to be protected or regulated by the statute that was allegedly violated by the defendant.

        5. 5 U.S.C. § 704

          1. “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”

          2. Final agency action is subject to judicial review.

          3. The action at issue does not qualify as either agency action or final agency action. BLM never announced anything that it called a “land withdrawal review program.”

        6. Court cast doubt on continued viability of SCRAP I.

          1. Court subsequently had not followed expansive standing doctrine.

        7. If people are dissatisfied, they need to seek remedies through the political process, not through the courts.

        8. NWF still can bring individual actions. Here, that means that NWF must bring over 12,000 separate lawsuits, and of course, no NGO has the resources to bring that many lawsuits.

        9. Sunk Costs – Generally, courts are reluctant to enjoin ongoing activities, especially if significant costs have been sunk into those activities.

      11. Lujan v. Defenders of Wildlife (Lujan II) (1992)

        1. This is a constitutional standing case, unlike Morton or Lujan I.

        2. Article III Case or Controversy Requirement

          1. Constitutional Standing Requirement – Standing is a necessary component for a case or controversy.

          2. If plaintiff lacks standing, federal court must dismiss case for lack of jurisdiction.

          3. See American Bottom Conservancy v. U.S. Army Corps of Engineers, 650 F.3d 652 (7th Cir. 2011) – Supreme Court made up standing jurisprudence, and there is no constitutional basis for it. There are other constitutional standing limitations though.

        3. Three Constitutional Standing Requirements

          1. That the plaintiff have suffered an “injury in fact”—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;

          2. That there be a causal connection between the injury and the conduct complained of—the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court;

          3. That it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

        4. When a plaintiff’s injury arises from government regulation of a third party, much more is needed to show standing. It is a more onerous showing.

          1. See p. 164.

          2. Helps regulated entities. Makes it harder for regulatory beneficiaries.

          3. Some viewed this case as an effort by Scalia to reinvigorate the “legally protected interest” test for standing.

        5. Plaintiffs failed to show “injury in fact.”

          1. Geographical nexus was not the problem.

          2. Actual or Imminent Requirement – No temporal nexus.

            1. Plaintiff must establish a temporal nexus or temporal proximity between the alleged adverse consequences of the agency’s actions and the members’ imminent use of the resources adversely affected.

            2. Scalia said, “Show me a plane ticket.” Without that, plaintiffs could show no imminent injury.

        6. Procedural Injury

          1. Argument – Plaintiffs claimed that they had suffered procedural injury as well. Agencies are supposed to seek public input regarding their decisions, and this was not done.

          2. Test for Procedural Injury – Plaintiff may rely on a procedural requirement only if its violation is alleged to impair a separate concrete interest.

            1. See footnote 7 on p. 156.

            2. Plaintiffs did not satisfy this test. Only an abstract, self-contained, and non-instrumental right had been impaired. Being upset about the noncompliance of the executive branch is insufficient without a showing that a concrete interest has been impaired.

            3. Plaintiffs were raising a generally available grievance about government. Political branches, not the judiciary, are the proper branches of government to which to bring such grievances.

        7. Creation of New Justiciable Injuries – Scalia is hostile to congressionally created causes of action.

          1. But see Akins (1998) – Holding that plaintiffs had standing pursuant to congressionally created cause of action.

            1. See pp. 160–61.

        8. Redressability

          1. Not satisfied.

          2. Limited Precedential Value – Only four justices supported.

          3. Court would not be able to stop foreign agencies from continuing with the offending projects. Therefore, plaintiffs have not shown that the Court is able to redress their injuries. Even if the Court were to reverse the current regulation and reinstate the previous regulation, there is no guarantee that the agencies would comply.

          4. Procedural Rights

            1. Causation and redressability requirements do not apply in the same way. Procedures don’t dictate substantive results.

            2. Subsequently, courts have addresses these two requirements much less rigorously.

        9. Lujan and Lujan II curtailed standing doctrine.

          1. Justification for Injury in Fact – Adversarial system depends on strong arguments, and those that are adversely affected are likely to make the strongest arguments.

          2. Lujan and Lujan II are not about this, however; they are about separation of powers and preventing the aggrandizement of power by Congress and the president.

        10. Skepticism of Citizen Standing – Scalia said that granting standing might violate Art. II. It is the president’s job to enforce the laws, not the people. Liberal standing in citizen-suits would allow people to usurp the president’s authority in this regard.

        11. Kennedy, Concurring

          1. Cognizant of Art. II problems.

          2. Organizations had failed to demonstrate that they had sustained an injury that would support standing.

          3. However, in different circumstances, a nexus theory similar to the theories proffered by the organizations in the case at hand might support a claim to standing.

        12. Blackmun, Dissenting

          1. Separation of Powers – Courts not enforcing citizen-suits would allow the courts to infringe the power of Congress. This is the real separation of powers issue.

          2. Organizations raised genuine issues of fact, both as to injury and as to redressability, that were sufficient to survive a motion for summary judgment on standing.

          3. Environmental plaintiffs who allege "ecosystem nexus" or vocational or professional injury should not be required to show physical proximity to the alleged wrong.

          4. Some classes of procedural duties are so enmeshed with the prevention of substantive, concrete harm that an individual plaintiff may be able to demonstrate a sufficient likelihood of injury solely through the breach of that procedural duty.

      12. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000)

        1. “The relevant showing for purposes of Article III standing is not injury to the environment but injury to the plaintiff.”

          1. Absence of proof of injury to the environment does not mean that the plaintiffs have not been harmed. E.g., plaintiffs feared swimming in the river.

          2. Why fact that district court found that mercury discharges were not harming the environment did not vitiate standing.

          3. Risks of future harm/probabilistic harms usually are sufficient for standing, but case law is mixed.

            1. See pp. 173–75.

            2. Particularly relevant for climate change cases.

        2. Injury in Fact

          1. Geographical and temporal nexuses were satisfied.

          2. Subsequently, courts have been mixed on whether fear is enough to satisfy injury in fact.

            1. Here, however, fear sufficed.

          3. Recreational/aesthetic interests are cognizable for environmental claims and can establish standing.

        3. Redressability/Civil Penalties

          1. Civil penalties paid to government, not plaintiff, satisfy redressability requirement because of deterrent effect.

          2. “To the extent that [civil penalties paid to government] encourage defendants to discontinue current violations and deter them from committing future ones, they afford redress to citizen plaintiffs who are injured or threatened with injury as a consequence of ongoing unlawful conduct.”

        4. Distinguishing Steel Co.

          1. Standing is determined when lawsuit is filed.

          2. In Steel Co., all harm had ceased by filing. Here, harm was ongoing.

        5. Mootness

          1. Definition – “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. The ‘heavy burden of persuading’ the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.”

            1. Mootness = Standing in a time frame.

          2. Voluntary Cessation of Injurious Conduct

            1. Test – “Defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

            2. Moots a case in federal court only if it is absolutely clear that the harm will not recur. Laidlaw failed to prove that in this case. Laidlaw might reopen the facility and engage in the same activity. Future violations are possible.

        6. Scalia, Dissenting

          1. Plaintiffs failed to show individual harm in the absence of environmental harm.

          2. Concern about the environment is not sufficient to demonstrate injury in fact.

          3. Ruling has grave implications for democratic governance. Going beyond traditional constitutional bounds. He is harking back to the legally-protected-interest test.

          4. Calls citizens “self-appointed EPAs.” But Congress authorized citizens to bring suit. They are Congress-appointed.

      13. Statutory & Prudential Standing Requirements – See pp. 176–79.

        1. Three General Requirements

          1. Harm asserted by plaintiff must not represent a “generalized grievance” shared in substantially equal measure by all or a large class of citizens.

          2. Plaintiff must assert his or her own legal rights and interests rather than those of third parties.

          3. Plaintiff’s alleged injury must be within the zone of interest protected or regulated by the constitutional or statutory provision in question.

        2. No bar to animal standing under Art. III.

      14. Statutory Standing Requirements

        1. Zone of Interests Requirement – Injury must be within the zone of interests that Congress contemplated protecting when it enacted the statute.

          1. APA, 5 U.S.C. § 702 – “within the meaning of a relevant statute.”

          2. Other statutes may be sources of zones of interests.

          3. Congress has the power to eliminate a zone of interests if it chooses. This would make constitutional requirements the only real hurdle.

          4. NEPA – Conflicting case law on what NEPA’s zone of interest amounts to.

        2. Bennett v. Spear (1997)

          1. Concerned claim under ESA that Department of Interior had failed to perform nondiscretionary duties.

          2. Held that citizen suit provision grants a right to file a citizen suit to “any person” and found that Congress contemplated that industry groups might use the provision to avoid “over-enforcement” of the law.

          3. 16 U.S.C. § 1540(g)(1) – No limitation on who may bring lawsuits under ESA. Ranchers qualify as citizens and may sue.



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