By Aaron Gershonowitz
In Friends of Santa Clara River v United States Army Corps of Engineers, 2018 WL 1702746 (9th Cir. April 9, 2017) the Court reviewed the rules for organizational standing and concluded that it is easier for an organization to challenge a procedural defect in a project approval than a substantive defect.
Several environmental organizations challenged Army Corps of Engineers approval of a permit to discharge into waters of the United States, alleging that they would suffer aesthetic and recreational injury if the project was permitted to proceed. The Court noted that for an organization to have standing, it must have individual members who would have standing and for individual members to have standing they must establish three things: (1) injury in fact; (2) caused by the challenged conduct of the defendant; and (3) that a favorable decision would prevent the harm.
The Court noted that these when the challenge is to a procedural defect in the approval process the requirements are “softened.” To prove injury in fact caused by a procedural defect, plaintiff must only show that the procedural rules are intended to protect plaintiff’s interests and that it is reasonably probable that challenged action will challenge their interests. Because the challenge was to the environmental quality review process, the Court held that the procedures are intended to protect the type of interest being asserted and that there is a reasonable probability that the requested change in procedure could affect the substantive decision. Thus, the organizations had standing to challenge.