Amicus Curiae Brief — Lujan v. Defenders of Wildlife

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Filk &® i?

AUG 29 1991

No. 90-1424

rs IN THE z cing OF THe CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1991

MANUEL LUJAN, JR.,

SECRETARY OF THE INTERIOR.

Petitioner,

Vv

DEFENDERS OF WILDLIFE, et al.

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Eighth Circuit

BRIEF OF AMICI CURIAE

THE STATES OF

TEXAS, ARIZONA, ARKANSAS, CALIFORNIA,

FLORIDA, MAINE, MICHIGAN, MINNESOTA,

NEW JERSEY, NEW YORK, OHIO AND VERMONT

AND

THE CITIES OF NEW YORK, BALTIMORE, DENVER,

ELIZABETH, LOS ANGELES, SAN FRANCISCO,

SEATTLE AND BROWARD COUNTY

IN SUPPORT OF RESPONDENTS

Patrick J. Mahoney*

Gordon C. Atkinson

Robin J. Seeley

Gretchen R. Stroud

Cooley Godward Castro

Huddleson & Tatum

One Maritime Plaza

20th Floor

San Francisco, California 94111

Telephone: (415) 981-5252

*Counsel of Record

(Additional Amici Curiae

Counsel Listed in Appendix)

TABLE OF CONTENTS

STATEMENT OF INTEREST OF AMICI CURIAE ......... 1

SUMMARY OF THE ARGUMENT ......0...........ccccceeeceeeseeeees 3

SE ITITIIIITITET siccinrectinineeniahdiunaiinialbiianedninesneuinnenniiinintenenssesenseee 4

I. STATES AND CITIES MUST BE ABLE TO

ENSURE THAT FEDERAL AGENCIES COMPLY

WITH PROCEDURES ENACTED TO PROTECT

THEIR CITIZENS’ HEALTH, SAFETY AND

TEE sichebcininnatecsinnnsanguiicnnhessinabnbesiossensenetnsessesess 4

A. The Important Right To Enforce Procedural

I TIED TIE” cncidiniccicncnsccnsusnctsctocssnsecocces 4

B. The Ostensibly Advisory Nature Of The

ESA Consultations And Other Statutorily

Mandated Agency Procedures Does Not

Render Them Unenforceable.................... eae 6

1. Consultation Is Not An Optional Process ...7

2. Post-Consultation Agency Discretion

Does Not Deprive Respondents Of

Standing And The Courts Have So

Recognized Under Other Statutes .............. )

II. PETITIONER SUGGESTS INTOLERABLY

EXACTING STANDARDS FOR ALL FACETS

OF THE INQUIRY INTO CONSTITUTIONAL

ETUPUEPEN OED ccececscctisaldliabintecnestctecesesesescsescecesesecee: 12

A. Would-Be Plaintiffs Need Not, As Petitioner

Asserts, Wait Until Harm Is Certain Before

II scinninccsicncscncensctscnesccnncocnss 13

B. Petitioner’s Characterization Of The

Standards For Traceability And

Redressability Are Equally At Odds With

ES a 14

C. Congressional Enactment Of A Citizen

Suit Provision In The ESA Makes

Restrictive Standing Rules Particularly

Te 16

CARFEURAEUEIEIY cxvcccccnsconssecescnsevetnisasesianaiianmmaaiaaneeee 17

GI TRB UR IEED s1cccccccssnccecssenencnsntsinienieiatatamaianne A-1

il

TABLE OF AUTHORITIES

CASES:

Allen v. Wright, 468 U.S. 737 (1984) ...............0008. 16

Babbitt v. United Farm Workers Nat'l Union,

De sssetucsonsnne ? -_>

Baltimore Gas and Electric Co. v. Natural Resources

Defense Council, 462 U.S. 87 (1983) ..........0.00..... ...10

Bergen County v. Dole, 620 F. Supp. 1009 (D.N.J

1985), affd, 800 F.2d 1130 (3d Cir. 1986) ..................8

City of Davis v. Coleman, 521 F.2d 661

CORE GRe, BIITOD ccocccccccccccccccccccs: a 6,9,15

City of Los Angeles v. Nat'l Highway Traffic

Safety Admin., 912 F.2d 478 (D.C. Cir. 1990)......9, 15

Dellums v. Smith, 797 F.2d 817 (9th Cir. 1986) ............... 6

Duke Power Co. v. Carolina Envtl. Study Group,

Er a 14

Fernandez v. Block, 840 F.2d 622 (9th Cir. 1988).............. 6

Friends of the Earth v. United States Navy,

841 F.2d 927 (9th Cir.), modified, 850 F.2d 599

a ecsennnsscecsoccsoos 6

Gladstone, Realtors v. Village of Bellwood,

441 U.S. 91 (1979)............. | SSE 13

Gwaltney v. Chesapeake Bay Foundation,

cee ee 13

Havens Realty Corp. v. Coleman,

ES 16

Heckler v. Mathews, 465 U.S. 728 (1984) ..............00.00000... 13

iii

Int'l Primate Protection League v. Tulane Education

MB 6

Japanese Whaling Ass’n v. Am. Cetacean Soc’y,

AT Ee ee 15

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)...... 5

Lujan v. Nat'l Wildlife Fed’n, 110 S.Ct. 3177 (1990) ....... 16

Marsh v. Or. Natural Resources Council,

— ETRE Se ee er 10

McGarry v. Secretary of the Treasury, 853 F.2d 981

I a 5, 12

Motor Coach Industries, Inc. v. Dole, 725 F.2d 958

I so 5

Munoz-Mendoza v. Pierce, 711 F.2d 412

EE 5, 12

Nat'l Conservative Political Action Comm. v.

Federal Election Comm., 626 F.2d 953

EERIE a as ne ee 5

Nat'l Maritime Union of Am. v. Commander,

Military Sealift Command, 824 F.2d 1228

es I, a 5,11, 12

Nat'l Wildlife Fed’n v. Coleman, 529 F.2d 359

(5th Cir.), cert. denied, 429 U.S. 979 (1976) ........... 7,8

Nat'l Wildlife Fed’n v. Hodel, 839 F.2d 694

I 5,13

North Slope Borough v. Andrus, 642 F.2d 589

KX Ae 8

Or. Envtl. Council v. Kunzman, 817 F.2d 484

I a 6

Pyramid Lake Paiute Tribe of Indians v. United States

Dept. of Navy, 898 F.2d 1410 (9th Cir. 1990)............. 8

iv

Regents of the Univ. of Cal. v. Bakke,

CR EE —

Robertson v. Methow Valley Citizens Council,

Ee 10

Roosevelt Campobello Int'l Park Comm. v. United

States Envtl. Protection Agency, 684 F.2d 1041

EER SN Ce 8

Sierra Club v. Froehlke, 534 F.2d 1289

Ren 8

South East Lake View Neighbors v. Dep’t of

Housing & Urban Dev., 685 F.2d 1027

TE AN ee 6

Strycker’s Bay Neighborhood Council v. Karlen,

| ee 10

Trustees for Alaska v. Hodel, 806 F.2d 1378

| Eno e eaten 6

United States v. 27.09 Acres of Land, 760 F.

Supp. 345 (S.D.N.Y. 1991)..............ccccccseseeeeeeeeeeeeeeeeeees 9

Valley Forge Christian College v. Am. United

For Separation of Church and State,

ee 13, 15

Village of Arlington Heights v. Metropolitan

Housing Corp., 429 U.S. 252 (1977)................. ee 15

Warth v. Seldin, 422 U.S. 490 (1975) .................:cc0ee 15, 16

Weinberger v. Catholic Action of Hawaii/ Peace Educ.

Project, 454 U.S. 139 (1981) ..............cccccccceeeeeseeseeeeees 10

Western Oil & Gas Ass’n v. Envtl. Protection

Agency, 633 F.2d 803 (9th Cir. 1980).......................4.. 6

CONSTITUTION AND STATUTES:

United States Constitution, Article II1.................... passim

Administrative Procedures Act,

cca craeceadinlinninmiaeani 5, 16

I 11

Clean Air Act, 42 U.S.C. §§ 7401 et seq. ..............0.00066.. 6,13

Clean Water Act, 33 U.S.C. §§ 1251-1387 .................00 13

Coastal Zone Management Act, 16 U.S.C.

| Ee 5, 11

Ee 11

|, | a 11

Emergency Planning and Community Right-to-

Know Act, 42 U.S.C. §§ 11001-11050 .....00.000 0. 5

a 11

Ee 11

Employee Retirement Income Security Act, 29

TL eT 6

Endangered Species Act, 16 U.S.C. § 1531-1544

Ee passim

ET RE 16

a passim

I aie Gg

nn 7

EE nee 16

§11, 16 U.S.C. § 1540(gX 1A) ....0.0 es 16, 17

Federal Election Campaign Act, 2 U.S.C.

res cesses 5

National Environmental Policy Act, 42 U.S.C.

Tee aed passim

EXECUTIVE ORDERS AND REGULATIONS:

51 Fed. Reg. 19,929 (1986) 7

50 C.F.R. § 402.14(a)

vl1l

No. 90-1424

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

MANUEL LUJAN, JR.,

SECRETARY OF THE INTERIOR,

Petitioner,

v.

DEFENDERS OF WILDLIFE, et al.,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Eighth Circuit

BRIEF OF AMICI CURIAE

THE STATES OF

TEXAS, ARIZONA, ARKANSAS, CALIFORNIA,

FLORIDA, MAINE, MICHIGAN, MINNESOTA,

NEW JERSEY, NEW YORK, OHIO AND VERMONT

AND

THE CITIES OF NEW YORK, BALTIMORE, DENVER,

ELIZABETH, LOS ANGELES, SAN FRANCISCO,

SEATTLE AND BROWARD COUNTY

IN SUPPORT OF RESPONDENTS

STATEMENT OF INTEREST OF AMICI CURIAE

Respondent’s amici, numerous states and local gov-

ernments, wish to bring to the attention of the Court an

issue that threatens to have profound impact on state and

local governments’ ability to protect the health, safety and

welfare of their citizens and residents. Cities and states

could be denied access to courts to enforce the Endangered

Species Act (“ESA”), 16 U.S.C. §§ 1531-44, and other impor-

tant federal laws if the Court adopts Petitioner’s argument

advocating unprecedented restrictions on standing.

Cities and states regularly depend on environmental

consultation and disclosure laws such as the ESA and the

National Environmental Policy Act (“NEPA”), 42 U.S.C.

§§ 4321-4370b, to shape significant federal actions within

their jurisdictions. These laws help ensure that federal

activities do not inflict ill-considered, gratuitous harm on

state and local communities. Underlying Petitioner’s stand-

ing arguments is a broad challenge to the right of persons

injured by the federal government’s failure to follow proce-

dural, pianning or informational statutes to obtain access

to and redress in federal court.

Two factors are crucial to the ability of states and local

governments to protect their citizens: (1) no actor can be

excused or made immune from procedural and substantive

requirements, and (2) the consultation and disclosure pro-

cess itself must be both meaningful and enforceable. If the

Court adopts Petitioner’s arguments, the federal govern-

ment —- often the major participant in a local project —

might be able simply to ignore local concerns. This result

would seriously undermine state and local governments’

ability to protect their citizens.

Petitioner asks the Court to mandate that a plaintiff

demonstrate not only a likelihood of harm and redressa—

bility, but “definite” and “immediate” harm and certain

redressability. These standards surpass constitutional re-

quirements. In matters affecting public health and the

environment, harm frequently results from the cumulative

impact of many separate actions over time. Awaiting de-

monstrable manifestation of harm, as defined by Petitioner,

would all too often eliminate meaningful and economical

remedies. Petitioner fails to recognize that once the iceberg

has been struck, turning the ship will! do little good.

The states and cities submit this amicus brief to retain

their ability to guard the public health and safety of their

citizens and their power to preserve and enhance their

natural resources. Existing standing law preserves the

rights of states and local governments to seek judicial

redress for violations — procedural or substantive — of

requirements that Congress has established to protect the

public health and environment. Petitioner would render

many of these requirements unenforceable by state and

local governm:nts. Respondent’s amici urge this Court to

maintain the delicate balance in this important area of

local and federal relations, to resist Petitioner’s sweeping

arguments and to decide the case on the basis of existing

standing law.

SUMMARY OF THE ARGUMENT

The enforcement of procedural statutes is both well-

established and critical to the protection of the public health,

safety and welfare. The ostensibly advisory nature of the

ESA and similar congressionally-mandated procedures does

not defeat standing; rather, standing is well-recognized

where a plaintiff otherwise meets standards established

under Article III of the Constitution.

In this case, Petitioner posits intolerably exacting

Article III standards. The Court’s prior rulings make plain

that a plaintiff need not wait until harm is certain before

turning to the courts; nor demonstrate traceability with

absolute certainty; nor prove that a favorable decision will

redress the stated injury.

Petitioner's unprecedented limits on standing would

eviscerate the states’ and cities’ ability to protect the health,

safety and welfare of their citizens. Accordingly, the state

and local governments urge this Court to reject Petitioner's

position.

ARGUMENT

I,

STATES AND CITIES MUST BE ABLE TO EN-

SURE THAT FEDERAL AGENCIES COMPLY

WITH PROCEDURES ENACTED TO PROTECT

THEIR CITIZENS’ HEALTH, SAFETY AND

WELFARE

The Petitioner uses this case as a platform to launch a

broad and baseless assault on the rights of amici and

others to protect interests legitimately within their pur-

view when they enforce procedural aspects of congression-

ally-enacted statutes in federal court. Such statutory pro-

visions can be of extreme importance to amici. The Solici-

tor General is flatly mistaken in arguing that standing to

enforce federal procedures is a “novel” notion; to the con-

trary, it is well-established. Hence, Petitioner’s account of

the causation and redressability legs of standing law, which

would bar most, if ot all suits to enforce procedural stat-

utes, cannot be correct, and this Court should reject the

misguided invitation to bar such suits.

A. The Important Right To Enforce Procedural

Statutes Is Not “Novel”

Amici are gravely concerned by Petitioner’s references

to the “supposed ‘procedural injury” suffered by Respon-

dents (Brief for the Petitioner [hereinafter “Pet. Br.”} at 18)

and by the assertion that standing to seek a remedy for

such injury is a “novel theory.” Id. at 29. Standing to

require federal agencies to comply with statutes designed

to promote better, cleaner and safer living conditions and

an improved environment is of critical importance to amici.

It is also firmly established. !

1. The Court has repeatedly recognized, in other contexts, that

procedural interests are important and worthy of protection. Indeed, the

violation of procedures ranging from Fourth Amendment search and

seizure restrictions to the Federal Rules of Civil Procedure and the

(continued. . .)

State and local governments regularly rely on congres-

sionaily-enacted procedural, planning and informational

provisions to reduce the risk of harm to their citizens. For

example, in addition to the ESA, NEPA, the Emergency

Planning and Community Right-to-Know Act (“EPCRA”),

42 U.S.C. §§ 11001-50, the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 551 et seg., and the Coastal Zone

Management Act (““CZMA”), 16 U.S.C. §§ 1451-64, all con-

tain one or more significant procedural or informational

components for federal agency compliance upon which cit-

ies and states rely.

Standing based on the failure to comply with proce-

dural statutes has been accepted by each circuit of the

federal Court of Appeals that has explicitly considered the

question. See, e.g., McGarry v. Secretary of the Treasury,

853 F.2d 981, 984 (D.C. Cir. 1988) (discussing ERISA stand-

ing: “This court has made clear in the past that litigants

have standing to bring actions to vindicate procedural rights

guaranteed by statute.”);? Munoz-Mendoza v. Pierce, 711

F.2d 412, 428 (1st Cir. 1983) (failure to perform required

racial impact study required by HUD procedures was in-

jury-in-fact sufficient for standing); Motor Coach Indus-

tries, Inc. v. Dole, 725 F.2d 958, 964 n.5 (4th Cir. 1984)

1¢... continued)

Federal Rules of Evidence all give rise to a right of redress — whether or

not it can be proved at the outset that a correction of the procedural

violation would or even might yield a different result on the merits. See,

e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 431 (1982), where the

Court held that “[tJhe right to use [state law] adjudicatory procedures

shares [the] characteristics” of a property interest protected by the due

process guarantees of the Fourteenth Amendment.

2 See also Nat'l Wildlife Fed’n v. Hodel, 839 F.2d 694, 712(D.C. Cir.

1988) (under NEPA, plaintiffs have the right to enforce preparation of

an environmental impact statement (“EJS”)); Nat'l Maritime Union of

Am. v. Commander, Military Sealift Command, 824 F.2d 1228, 1237(D.C.

Cir. 1987) (disappointed bidder has procedural! right to legally valid

procurement process); Nat'l Conservative Political Action Comm. v. Fed-

eral Election Comm., 626 F.2d 953, 957 (D.C. Cir. 1980) (agency’s proce-

dural violation of Federal Election Campaign Act, 2 U.S.C. §§ 431 et seq.,

provided proper basis for standing).

5

(failure to follow procurement statutes and regulations is

sufficient injury for standing purposes); South East Lake

View Neighbors v. Dep’t of Housing & Urban Dev., 685 F.2d

1027, 1038 (7th Cir. 1982) (NEPA grants a procedural right

in the agency decision-making process); and Friends of the

Earth v. United States Navy, 841 F.2d 927, 932 (9th Cir.),

modified, 850 F.2d 599 (1988) (“This court has long recog-

nized that failure to follow [NEPA] procedures designed tw

ensure that the environmental consequences of a project

are adequately evaluated is a sufficient injury in fact to

support standing”).* In each of these cases, the circuit

court recognized that the violation of a procedural right

itself, not the substantive harm arising out of the proce-

dural violation, as Petitioner urges, can satisfy the injury-

in-fact requirement for standing.

B. The Ostensibly Advisory Nature Of The ESA

Consultations And Other Statutorily Mandated

Agency Procedures Does Not Render Them Un-

enforceable

Indisputably, suits to remedy a procedural wrong must

meet constitutional standards for injury, traceability and

redressability. See, e.g., Int'l Primate Protection League v.

Tulane Education Fund, 111 S.Ct. 1700, 1704 (1991). Thus,

3. See also Fernandez v. Block, 840 F.2d 622, 631 (9th Cir. 1988)

(invasion of procedural rights created by Employee Retirement Income

Security Act, 29 U.S.C. §§ 1001-1461, “sufficient toestablish the requisite

injury in fact”); Or. Envtl. Council v. Kunzman, 817 F.2d 484, 491 (9th Cir.

1987) (procedural failures in EIS preparation provide sufficient injury in

fact to support standing); Trustees for Alaska v. Hodel, 806 F.2d 1378,

1380 (9th Cir. 1986) (violation of procedural rights under NEPA and its

regulations sufficient for standing); Dellums v. Smith, 797 F.2d 817, 821

(9th Cir. 1986) (“Congress may . . . create procedural rights, the invasion

of which constitutes injury-in-fact and suffices to support standing.”);

Western Oil & Gas Ass'n v. Envtl. Protection Agency, 633 F.2d 803, 808 n.4

(9th Cir. 1980) (injury caused by failure to comply with the procedures of

the Clean Air Act, 42 U.S.C. §§ 7401 et seq., sufficient to support standing);

City of Davis v. Coleman, 521 F.2d 661, 670-72 (9th Cir. 1975) (failure to

prepare an EIS in compliance with NEPA’s procedures found to be

sufficient injury to support standing).

6

amici agree that geographic nexus between the Respon-

dents here and an area affected by the violation alleged is

an appropriate — and may be a necessary — measure of

the concreteness of a plaintiffs personal stake. Amici

cannot agree, however, with the Solicitor General’s unprec-

edented and untenable argument that because of the advi-

sory nature of the challenged regulation, the requisite

redressability is necessarily missing from this case. In the

first place, the regulation is in no sense “non-binding.” In

the second, to the extent that consultation under Section 7

of the ESA, 16 U.S.C. § 1536, does not guarantee substan-

tive results, this is a feature shared by numerous other

statutes, the enforceability of which is well-established.

1. Consultation Is Not An Optional Process

In arguing that revision of the regulation at issue

would not redress Respondents’ complaint, the Solicitor

General repeatedly and wrongly characterizes the regula-

tion as “non-binding.” Pet. Br. at 24 and 25. This assertion,

made without support, cannot be reconciled with the

Petitioner’s role as the official with “primary responsibility

for implementing Section 7,” (Nat'l Wildlife Fed’n v.

Coleman, 529 F.2d 359, 371 (5th Cir.), cert. denied, 429

U.S. 979 (1976), or with his express statutory authority for

such regulations. See 16 U.S.C. § 1540(f). It is equally at

odds with Petitioner’s own well-documented position on the

mandatory nature of consultation. For example, when the

Secretary of the Interior (the “Secretary”) gave notice of

adoption of the regulation in question, he cautioned that

“all Federal actions including ‘conservation programs’ are

subject to the consultation requirements of section 7(aX2) . .

..” 5i Fed. Reg. 19,929 (1986) (emphasis added). Simi-

larly, the regulations note that consultation is “required”

unless otherwise excused by the regulations, or the terms

of the statute, and establish procedures for Petitioner's

delegate, the Director of Fish and Wildlife Service, to ini-

tiate consultation with dilatory agencies. See 50 C.F.R.

§ 402.14(a).

The courts, too, have made it plain that consultation is

not optional. Although each federal action agency must

ultimately decide whether its project may jeopardize en-

dangered species, this decision can be made only after

action agencies have fulfilled their procedural duties under

Section 7. Sierra Club v. Froehlke, 534 F.2d 1289, 1303-

1304 (8th Cir. 1976) (the responsibility for decision after

consultation is not vested in the Secretary, but in the action

agency); National Wildlife Fed’n v. Coleman, 529 F.2d at

371 (once the action agency has had meaningful consulta-

tion with the Secretary, the final decision of whether or not

to proceed lies with the action agency). Thus, Section 7’s

procedural requirements are a necessary prerequisite to an

acvion agency’s decision-making process.

In addition, Section 7’s formal consultation process

creates an administrative record upon which federal courts

rely in determining whether federal action agencies have

satisfied their Section 7 substantive duties.* Courts give

substantial weight to “biological opinions” produced by the

Secretary as a result of consultation, when assessing an

action agency’s compliance with the ESA. See Roosevelt

Campobe!lo Int'l Park Comm. v. United States Envitl. Pro-

tection Agency, 684 F.2d 1041, 1049 (1st Cir. 1982). Thus,

even if Section 7's formal consultation process were some-

how optional, federal agencies would, as a practical matter,

have a strong incentive to avail themselves of it.

4. See, e.g., Pyramid Lake Paiute Tribe of Indians v. United States

Dept. of Navy, 898 F.2d 1410, 1415 (9th Cir. 1990) (U.S. Navy was entitled

to rely on opinions of Fish and Wildlife Service in meeting its ESA duties);

Bergen County v. Dole, 620 F. Supp. 1009, 1063 (D.N.J. 1985), aff'd, 800

F.2d 1130 (3d Cir. 1986) (federal agencies were entitled to rely upon

consultation with U.S. Fish and Wildlife Service in discharging their

duties under the ESA section 7 (a) and (c)); North Slope Borough v.

Andrus, 642 F.2d 589, 610 (D.C. Cir. 1980) (no substantive section 7

violation because of compliance with final biological opinion by National

Marine Fisheries Service); Nat'l Wildlife Fed’n v. Coleman, 529 F.2d at

375 (court of appeals would defer to Secretary to determine what modifi-

cations were necessary to bring highway project into compliance with

section 7).

For similar reasons, there is no merit in the Solicitor

General’s argument that redressability founders on the

possibility that “informal” consultations may substitute for

for Section 7's requirements. Pet. Br. at 22. The proposed

substitution of an ad hoc process for safeguards Congress

mandated in the ESA cannot be squared with the great

detail devoted to consultation in the statute, see 16 U.S.C.

§ 1536(b)-(d) or, for that matter, with the notion that we are

a society of laws. The argument is, in fact, little more than

the bare claim that executive agencies are free to ignore

congressional directives.

2. Post-Consultation Agency Discretion Does

Not Deprive Respondents Of Standing And

The Courts Have So Recognized Under Other

Statutes

The Secrc‘ary argues that the ESA consultation pro-

cess mandated in Section 7 is of an advisory nature and, on

that ground, cannot meet Article III’s redressability (or

traceability) requirement. Petitioner asserts that “action

agencies are ultimately responsible for making their own

decisions about what is required of them under Section

7(aX2)” (Pet. Br. at 25), implying that the failure to consult

is, in effect, irrelevant. Petitioner’s analysis is as appli-

cable to domestic projects as it is to those located overseas

and, if accepted, could undermine the standing of state and

local governments (and others) to protect endangered spe-

cies by suing to enforce federal agencies’ ESA consultation

obligations on projects within their borders.

Beyond the ESA, state and local governments need to

be able to, and regularly do, challenge federal agency fail-

ures to follow congressionally-mandated procedures in a

variety of other statutes. See, e.g., City of Los Angeles v.

Nat'l Highway Traffic Safety Admin., 912 F.2d 478 (D.C.

Cir. 1990); City of Davis v. Coleman, 521 F.2d 661 (9th Cir.

1975); and United States v. 27.09 Acres of Land, 760 F.

Supp. 345 (S.D.N.Y. 1991). Yet Petitioner would have such

suits dismissed because “the causal connection between the

interpretative regulation and the asserted injury . . . is

‘highly indirect” and “the prospect of redress . . . cor-

respondingly speculative.” Pet. Br. at 26 and 27. Without

“assurance” that a project will be redesigned or stopped as

a result of judicial action, under Petitioner’s theory these

plaintiffs would have lacked standing.

Given the extreme number and range of established

causes of action to which it would apply, Petitioner’s argu-

ment is simply untenable. The wholesale reversal of firmly

established law that would follow from this Court’s accep-

tance of this argument is perhaps most obvious in the

context of NEPA cases. NEPA requires federal agencies to

prepare an environmental analysis of the impact of their

actions but does not require implementation of any particu-

lar substantive measures. Thus in Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 350 (1989), the Court

acknowiedged that it is unnecessary to demonstrate that

remedying a procedural error will remedy a substantive

harm. The Court reasoned that “[o]ther statutes may im-

pose substantive environmental obligations on federal agen-

cies, but NEPA merely prohibits uninformed — rather than

unwise — agency action.” Jd. at 351. As a result, an EIS

may have no impact whatsoever on a potentially harmful

project, but this Court has consistently entertained suits

that sought to decrease the likelihood of inadvertent envi-

ronmental harm through enforcement of NEPA’s proce-

dural mandates.®

5. See, e.g., Marsh v. Or. Natural Resources Council, 490 U.S. 360

(1989) (standing not questioned in reviewing organization’s claim that a

supplemental EIS was required); Baltimore Gas and Electric Co. v.

Natural Resources Defense Council, 462 U.S. 87 (1983) (standing not

questioned in reviewing Nuclear Regulatory Commission regulations

governing consideration of environmental! impact of nuclear power plant

license; also affirming the information function of NEPA); Weinberger v.

Catholic Action of Hawaii / Peace Educ. Project, 454 U.S. 139 (1981) (not

questioning standing of organizations to challenge Navy’s failure to

disclose publicly an EIS concerning construction of facility capable of

storing nuclear weapons); Strycker’s Bay Neighborhood Council v. Karlen,

444 US. 223 (1980) (not questioning standing in reviewing adequacy of

agency's consideration of environmental impact).

10

Petitioner unpersuasively seeks to distinguish cases

in which standing was found based on procedural viola-

tions of NEPA, by differentiating the EIS public informa-

tion function from the ESA’s consultation process. Pet. Br.

at 29 and 30. This distinction does not withstand analysis.

Because NEPA procedures are purely procedural in nature,

violations of NEPA can never cause substantive impacts

that would satisfy Petitioner’s redressability arguments.

The failure to generate or supply the requisite information

would never require that a federal agency take a particular

course of action on any parcel of land. Rather it would

create only an abstract “informational” injury without any

resultant substantive impacts on a physical site. Conse-

quently, the Secretary’s argument that Respondents lack

standing because of the nature of the ESA consultation

process applies with equal force to NEPA’s procedural re-

quirements.

Moreover, NEPA is by no means the only illustration

of why it is irrelevant that ESA consultation does not

guarantee a substantive outcome. Demanding that a plain-

tiff provide “assurances” of substantive redressability would

lead to absurd results under other statutes. It would be, for

example, difficult to prove the substantive results of an

emergency evacuation plan or an inventory of toxic chemi-

cals. See, e.g., EPCRA, 42 U.S.C. §§ 11003, 11022. And the

CZMA, a crucial planning tool for coastal governments, has

consultative provisions almost identical to Section 7(aX2)

of the ESA. See 16 U.S.C. § 1456(a) and (cX1). Similarly,

notice and comment rulemaking under the APA, 5 U.S.C.

§ 553, is designed to ensure that federal agencies have the

views of interested parties before them, not that they adopt

those views or reach a specific substantive decision. Such

procedures are just as “advisory” as the ESA consultation.

It is not surprising, therefore, that courts that have

addressed this issue have found no redressability defect

simply because no substantive vindication was assured.

For instance, Judge Bork addressed Article III's traceabil-

ity requirement with regard to a procedural injury in Nat'l

Maritime Union. Discussing the standing of a disappointed

11

bidder in a government procurement process, Judge Bork

stated: “[A) bidder’s right to a fair procurement is obvi-

ously an injury both traceable to the alleged illegality in a

procurement and redressable by any remedy that elimi-

nates the alleged illegality.” Nat'l Maritime Union, 824

F.2d at 1237-38 (footnote omitted). Judge Bork also noted

that if the underlying substantive economic injury were

held to be the sole basis of the disappointed bidder’s stand-

ing, traceability problems would be likely (presumably be-

cause, even had proper procedures been followed, the dis-

appointed bidder might not have been awarded the con-

tract). Jd. at 1238, n.13. Elsewhere, the D.C. Circuit

explained that “i]t is a well-established rule that a party

suing to vindicate such [procedural] rights need not make a

showing that the agency would have acted differently.”

McGarry, 853 F.2d at 985. See also Munoz-Mendoza, 711

F.2d at 428 (“Article III of the Constitution does not require

a plaintiff to show that use of a mandated procedure would

change an agency’s substantive action.”); id. at 428-29 (“if

plaintiffs were required to show that different procedures

would result in different substantive choices, federal courts

would be required to pass judgment, in the guise of a

standing inquiry, upon substantive issues that agencies

rather than courts ought to resolve in the first instance.”).

Il.

PETITIONER SUGGESTS INTOLERABLY

EXACTING STANDARDS FOR ALL FACETS

OF THE INQUIRY INTO CONSTITUTIONAL

STANDING

In addition to its untenable position on “advisory”

procedures, Petitioner’s brief also invites this Court to en-

gage in an across-the-board reformulation of the estab-

lished constitutional prerequisites for Article III standing.

The suggested standards for injury-in-fact, traceability and

redressability would deprive many legitimate claims, often

asserted by amici, of a hearing in federal court. However

ill-advised these standards may be as a general matter,

12

they are even more indefensible where Congress has en-

acted an explicit citizen suit provision.

A. Would-Be Plaintiffs Need Not, As Petitioner As-

serts, Wait Until Harm Is Certain Before Turning

To The Courts

Amici leave to the parties the debate over whether the

specific affidavits in this case suffice to establish standing

for Defenders of Wildlife (“Defenders”). Amici’s principal

concerns have to do with the standards by which such

affidavits are judged (and as discussed in Part I, with

arguments to the effect that no affidavits could suffice for

the type of claim asserted here). Most striking and trou-

bling of those advocated by Petitioner are the ones relating

to certainty and immediacy of injury.

Petitioner’s proposal that Defenders be required to

demonstrate concrete substantive harm with absolute cer-

tainty, see Pet. Br. at 17, 20, 23 and 24, ignores the time-

honored principle that threatened harm is sufficient to form

a basis for standing. See, e.g., Heckler v. Mathews, 465 U.S.

728, 738 (1984); Valley Forge Christian College v. Am.

United For Separation of Church and State, 454 U.S. 464,

472 (1982); Gladstone, Realtors v. Village of Bellwood, 441

U.S. 91, 99 (1979). This allows “those who plausibly antici-

pate future injury to bring suit.” Nat’ Wildlife Fed’n v.

Hodel, 839 F.2d at 705. See also Babbitt v. United Farm

Workers Nat'l Union, 442 U.S. 289 (1979) (threatened harm

from enforcement of Arizona statute sufficient to form ba-

sis for standing).®

In addition, the Secretary’s demand for an extraordi-

nary degree of certainty in the demonstration of substan-

6. Petitioner's arguments could also threaten standing to challenge

statutes with substantive requirements such as the Clean Water Act, 33

U.S.C. §§1251-1387, or the Clean Air Act, 42 U.S.C. §§7401 et seg. Onecan

rarely show that a single discharge is causing a measurable increment of

harm or that cessation of a discharge would guarantee a measurable

improvement. Yet the Court has affirmed the right to bring such suits.

See, Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49, 65 (1987).

13

tive harm runs contrary to the remedial purposes of stat-

utes such as the ESA and NEPA. Ifa plaintiff must wait

until endangered species are jeopardized to enforce the

procedures that Congress designed to prevent that occur-

rence, the usefulness of the congressional ounce of preven-

tion provided by the ESA’s consultation process is greatly

diminished. And, once an endangered species becomes

extinct, although a plaintiff may then be able to demon-

strate harm under the Secretary’s scheme, even a judicial

pound of cure can never bring back the lost species.

This is precisely the position in which Petitioner would

leave those seeking to enforce the ESA’s procedural and

substantive constraints on federal agency actions. Because

the ESA requires no additional action — other than consul-

tation — before commencement of a project, if plaintiffs

cannot challenge failure to consult they will apparently

have to await the project’s start before seeking to force

consultation. By then it may be too late: irremediable

harm to species may already have occurred.’

B. Petitioner’s Characterization Of The Standards

For Traceability And Redressability Are Equally

At Odds With Esta plished Law

Petitioner’s demand that Defenders demonstrate trace-

ability with absolute certainty badly overs.ates constitu-

tional strictures. Article III requires only that a plaintiff

demonstrate a substantial likelihood that the defendant’s

action would result in the injury claimed. Duke Power Co.

v. Carolina Envtl. Study Group, 438 U.S. 59, 77-78 (1978).

The essence of the standing requirement is merely to de-

7. Similarly unconvincing is Petitioner's suggestion that in this case

Respondents’ standing should depend on whether at all times at least one

Defenders’ member is stationed in the Nile crocodile’s habitat (thus

meeting the Secretary’s proposed requirement that Defenders’ members

engage in “on-going visits” to the disputea sites). Pet. Br. at 23. Nor

should Defenders’ standing rest on whether Joyce Kelly has confirmed a

return trip to Egypt within a short period of time (demonstrating, as the

Secretary would have it, that “visits will definitely occur in the immediate

future”). Pet. Br. at 23-24.

14

cide “whether the litigant is entitled to have the court

decide the merits of the dispute or of particular issues.”

Warth v. Seldin, 422 U.S. 490, 498 (1975). “(S}tanding in

no way depends on the merits of the plaintiff's contention

that particular conduct is illegal.” Id. at 500.

Thus, Petitioner is incorrect in arguing in effect that

an analysis on the merits is necessary to determine whether

specific harm results from the alleged illegal conduct. If

Petitioner were correct, Defenders would be required to

perform a precise, in-depth examination of the effects a

federal agency action would have on endangered species,

the very analysis Defenders is seeking to compel in this

lawsuit. Petitioner’s argument would thereby require that

plaintiffs themselves supply much of the relief they seek.

For that reason lower courts determining standing under

NEPA have rejected the Secretary’s argument. See, e.g.,

City of Los Angeles, 912 F.2d at 496; City of Davis, 521 F.2d

at 670-71 (if this standing requirement existed, “we would

in essence be requiring that the plaintiff conduct the same

environmental investigation that he seeks in his suit to

compel the agency to undertake.”)

Petitioner’s version of the redressability requirement

is also much stricter than established precedent. It is a

long-held principle that a party seeking judicial relief need

not show to a certainty that a favorable decision will re-

dress his injury. A mere likelihood will do. Village of

Arlington Heights v. Metropolitan Housing Corp., 429 U.S.

252, 261 (1977). See also Valley Forge, 454 U.S. at 472 and

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 280-81

(1978) (observing that a plaintiff's right to be considered

may not have substantive results for that plaintiff).

In a case closely paralleling this one, the Court not

long ago expressly investigated standing and found ad-

equate redressability. See Japanese Whaling Ass’n v. Am.

Cetacean Soc’y, 478 U.S. 222, 230 n.4 (1986). Plaintiffs, a

group not unlike Defenders, sought to force a cabinet officer

to follow a process designed to encourage a foreign power to

reduce its impacts on marine wildlife. Jd. at 223. The

foreign power, however, remained quite free to ignore the

15

pressure if it so chose. Nonetheless, the Court was able

easily to conclude that “respondents may avail themselves

of the right of action created by the APA.” Id. at 230 n.4.

C. Congressional Enactment Of A Citizen Suit

Provision In The ESA Makes Restrictive Stand-

ing Rules Particularly Inappropriate

The Secretary's plea for imposing difficult if not im-

possible standing requirements is especially misplaced in

this case because of the existence of a citizen suit provision.

Through Section 11(g) of the ESA, 16 U.S.C. § 1540(g),

Congress has explicitly authorized a broad range of parties

to enforce the ESA’s provisions, including Section 7’s con-

sultation requirements. Section 11 empowers “any person”

to enjoin a violation of “any provision” of the ESA or regula-

tions issued under the authority of the ESA. 16 U.S.C.

§ 1540(gX 1A). The ESA’s definition of persons entitled to

sue includes not only individuals and associations, such as

environmental groups, but also state and local govern-

ments, such as amici. 16 U.S.C. § 1532(13).

Of course, as the Solicitor General points out, Con-

gress cannot dispense with the bedrock constitutional stand-

ing requirements necessary to ensure that Article III courts

hear only actual controversies. See Pet. Br. at 28. It is

equally indubitable, however, that Congress has the power

to create statutory rights, the invasion of which can provide

the basis for standing. Warth, 422 U.S. at 500. See also

Allen v. Wright, 468 U.S. 737, 763 (1984); Havens Realty

Corp. v. Coleman, 455 U.S. 363, 373 (1982). This is true

even if the plaintiff claims an injury shared by a large class.

Warth, 422 U.S. at 499. Recently, in Lujan v. Nat'l Wildlife

Fed’n, 110 S.Ct. 3177, 3181 (1990), the Court noted Con-

gress’ ability to create rights of action by acknowledging

that explicit statutory authorization would have provided

the complainant with a separate basis on which to chal-

lenge agency administrative processes.

The Secretary has suggested that Defenders’ lawsuit

is not properly brought under Section 11 on the theory that

16

Section 7’s consultation provisions do not mandate his par-

ticipation and thus that his failure to consult does not

violate the ESA. Pet. Br. at 29 n.18. This argument hardly

squares with Section 7’s explicit provisions. In Section 7,

Congress prescribed a careful and detailed consultation

process which requires the participation of two parties —

the Secretary and the action agency. It is nonsensical to

assume, as Petitioner does, that Secticn 7 mandates the

behavior of the action agency alone and that the Secretary

could with impunity thwart Congress’ carefully elaborated

intent by declining to engage in the prescribed consulta-

tion. ESA consultation is not optional for the Secretary,

and his refusal to engage in it, whether in individual in-

stances or by wholesale regulation, is a violation of the act,

amenable to suit under 16 U.S.C. §1540(gX 1A).

CONCLUSION

The Court should reject Petitioner’s standing analysis

-and enforce the congressional mandate granting a broad

range of parties the right to ensure that the federal govern-

ment fulfills the ESA’s procedural and substantive require-

ments. By doing so, the Court will ensure that the nation’s

states and local governments can require federal agencies

to take their constituents’ health, safety and welfare into

account, not only under the ESA but also under a host of

other statutes, whose very viability is at stake in this

litigation. Simply stated, adopting Petitioner’s tortured

standing analysis could have the effect of limiting the abil-

ity of states and local governments to protect their local

environment, and could insulate federal agencies from com-

plying with congressional directives enacted for the benefit

of all.

17

Respectfully submitted,

PATRICK J. MAHONEY*

GORDON C. ATKINSON

ROBIN J. SEELEY

GRETCHEN R. STROUD

COOLEY GODWARD CASTRO

HUDDLESON & TATUM

One Maritime Plaza, 20th Floor

San Francisco, California 94111

Telephone: (415) 981-5252

*Counsel of Record

(Additional Counsel for

Amici Curiae Listed in

Appendix)

18

APPENDIX

ADDITIONAL COUNSEL FOR AMICI CURIAE

CITY OF NEW YORK STATE OF TEXAS

Victor A. Kovner Dan Morales

Corporation Counsel of Attorney General of Texas

the City of New York Will Pryor

Leonard J. Koerner First Assistant Attorney

Chief Assistant Corporation General

Counsel Mary F. Keller _

Peter H. Lehner Deputy Attorney General

Susan E. Amron Nancy N. Lynch

Michael J. Bogin Assistant Attorney General

Assistant Corporation Mary Ruth Holder

Counsel Assistant Attorney General

Shannon J. Kilgore

Assistant Attorney General

100 Church Street P. QO. Box 12548

New York, New York 10007 Austin, Texas 78711-2548

Telephone: (212) 788-1164 ‘Telephone: (512) 463-2012

ADDITIONAL STATES

State of Arizona

Grant Woods

Attorney General of Arizona

1275 West Washington

Phoenix, Arizona 85007

Telephone: (602) 542-4266

State of Arkansas

Winston Bryant

Attorney General of Arkansas

200 Tower Building

323 Center Street

Little Rock, Arkansas 72201-2610

Telephone: (501) 682-2007

State of California

Daniel E. Lungren

Attorney General of California

1515 K Street, Suite 511

Sacramento, CA 95814

Telephone: (916) 445-9555

State of Florida

Robert A. Butterworth

Attorney General of Florida

The Capitol

Tallahassee, Florida 32399-1050

Telephone: (904) 487-1963

State of Maine

Michael E. Carpenter

Attorney General of Maine

State House Station #6

Augusta, Maine 04333

Telephone: (207) 289-3661

State of Michigan

Frank J. Kelley

Attorney General of Michigan

525 West Ottawa Street

P.O. Box 30212

Lansing, Michigan 48909

Telephone: (517) 373-1110

State of Minnesota

Hubert H. Humphrey, III

Attorney General of Minnesota

525 Park Street

Suite 200

St. Paul, Minnesota 55103

Telephone: (612) 297-1050

State of New Jersey

Robert J. Del Tufo

Attorney General of New Jersey

Richard J. Hughes Justice Complex

CN 112

Trenton, New Jersey 08625

Telephone: (609) 984-9664

State of New York

Robert Abrams

Attorney General of New York

120 Broadway

New York, New York 10271

Telephone: (212) 341-2472

State of Ohio

Lee Fisher

Attorney General of Ohio

30 East Broad Street

17th Floor

Columbus, Ohio 43266-0410

Telephone: (614) 466-2766

State of Vermont

Jeffrey L. Amestoy

Attorney General of Vermont

109 State Street

Montpelier, Vermont 05609

Telephone: (802) 828-3171

A-3

ADDITIONAL CITIES AND COUNTIES

Mayor and City Council of Baltimore

Neal M. Janey

City Solicitor

Department of Law

City Hall, Suite 101

100 Holiday Street

Baltimore, Maryland 21202

Telephone: (301) 396-3100

County of Broward

John J. Coplan, Jr.

County Attorney

Broward County

115 South Andrews Avenue

Ft. Lauderdale, Florida 33301

Telephone: (305) 357-7600

City and County of Denver

Patricia L. Wells

City Attorney

City of Denver

1445 Cleveland Place, Room 303

Denver, Colorado 80202

Telephone: (303) 640-2302

City of Elizabeth

Frank P. Trocino

City Attorney

City of Elizabeth

50 Winfield Scott Plaza

Elizabeth, New Jersey 07201-2462

Telephone: (908) 820-4009

City of Los Angeles

James K. Hahn

City Attorney

200 North Main Street, 18th Floor

Los Angeles, California 90012

Telephone: (213) 485-5408

City and County of San Francisco

Louise H. Renne

City Attorney

City and County of San Francisco

City Hall, #206

San Francisco, California 94102

Telephone: (415) 554-4216

City of Seattle

Mark H. Sidran

City Attorney

600 4th Avenue, 10th Floor

Seattle, Washington 98104-1877

Telephone: (206) 233-2199