“Standing” to Challenge Environmental Review Faces Redressability/Causation Challenge

Article III of the Constitution gives federal courts the power to decide only cases and controversies, and courts understand that to mean there must be a dispute between adverse parties.  This constitutional requirement means that in order to bring a suit challenging government action, the plaintiff must have “standing,” meaning that plaintiff must really be an adverse party.  To establish “standing” plaintiff must show that:

  1. it has been or is likely to be injured;
  2. the injury is traceable to (caused by) the challenged government action; and
  3. it is likely that the injury will be redressed (cured) by a favorable outcome.

To illustrate, if A applies for a permit and is denied and A wants to challenge the denial in court, A is likely to have “standing” because A was injured by the denial of the permit, the injury is traceable to the challenged action and if A is successful in the challenge, the injury will be redressed (cured) because A will obtain the permit.

“Standing” is more difficult to establish when the government action being challenged is procedural.   The environmental review statutes (NEPA on the federal level and SEQRA in New York) are procedural.  They require agencies to examine environmental impacts, but they do not require any substantive response.  Standing is difficult to establish in such cases because there is no way to know whether a procedural change will result in a substantive change and cure the alleged injury.  In such cases, courts will ordinarily relax the causation and redressability requirements.

The Ninth Circuit Court of Appeals decision in WildEarth Guardians v United States Forest Service, 2023 WL 3987843 (9th Cir. June 14, 2023) addressed a novel “standing” issue in the environmental review process and held that plaintiff could not establish standing to sue because plaintiff could not establish that a successful challenge would solve the problem.  WildEarth Guardians was interested in protecting wolves and claimed that the Forest Service violated NEPA by failing to examine alternatives, including modifying the a grazing management order, to reduce the conflicts between livestock and wolves.  WildEarth Guardians claimed that its members had aesthetic enjoyment in watching and studying wolves and it was injured when the State of Washington killed wolves to protect livestock.  This claim satisfied the “injury” element of “standing.”  The problem with WildEarth’s standing argument was that the alleged injury was caused by the State of Washington and not by the Forest Service.  Thus, a victory in the NEPA claim, requiring additional environmental review (additional procedure), might not prevent the injury.  That requirement is usually relaxed in the case of a procedural claim like a NEPA claim, but here there was an added element.  Even if the procedural claim was successful and resulted in a substantive change, i.e. a revised grazing management plan, it was unclear that this change by the Forest Service would affect the actions of Washington State.

The causation and redressability elements of standing often sound like the same thing because if the action being challenged did not cause the alleged injury, then eliminating the action that caused the injury will not solve the problem.  A case like this, where the cause of the alleged injury is a third party, i.e. not the party whose action is being challenged, would seem like the ideal place to distinguish causation from redressability.   The court took a step in that direction stating that even if the alleged injury was traceable to the action by the Forest Service, the presence of a third party made the claim for standing much more difficult.  The court concluded, however, that the presence of a third party made both causation and redressability more difficult to prove.

To sum up, ordinarily standing requirements are relaxed in procedural challenges.  In this case, however, the presence of a third party who was not before the court made it very difficult for plaintiff to show that the action challenged caused the injury and that a victory by plaintiff would make any difference.  Thus, the standing requirements are not relaxed in procedural challenges where the action that causes the injury is the action of a third party not before the court.

This blog post was co-authored by Environmental Law Partner, Aaron Gershonowitz and one of FDT’s 2023 Diversity Fellowship interns, and a student at the Maurice A. Deane School of Law at Hofstra University, Josephine R. Pinnock.