Standing to Challenge Regulations Under Mining and Environmental Statutes

Transcription

1 Chapter 3 Cite as 18 E. Min. L. Inst. ch. 3 (1998) Standing to Challenge Regulations Under Mining and Environmental Statutes J. Michael Klise Crowell & Moring LLP Washington, D.C. Synopsis Introduction Basic Elements of Standing [1] Constitutional Requirements [2] Prudential Considerations [3] Congress Can Modify Prudential Considerations but Cannot Create Standing Standing, Ripeness, and Statutory Limitations [1] The Intrinsic Standing Issue in Rulemaking Challenges [2] Overcoming the Intrinsic Obstacles the Flexible Approach of NWF v. Hodel [3] The Ossification of the Standing Analysis [a] Government Unsuccessfully Challenges Industry s Standing [b] Court Questions Industry s Standing but Relents [c] Court Rejects All Challengers Standing [4] The Blurring of Standing and Ripeness [a] The Consequences of Suing Too Early [b] The Hazards of Suing Too Late [5] The Timing of the Inquiry into Standing [a] Proving Standing at the Pleading Stage [b] Proving Standing at the Summary Judgment Stage [c] Proving Standing Post-Judgment [6] The Uncertain Future of Standing in Rulemaking Challenges Conclusion Introduction. The United States Court of Appeals for the District of Columbia Circuit where many challenges to federal agency rulemakings are heard has grown increasingly rigorous about requiring a party seeking judicial review

2 3.01 EASTERN MINERAL LAW INSTITUTE of agency regulations to prove its standing to sue. 1 Two recent decisions in the wake of the Supreme Court s constriction of third-party standing in Lujan v. Defenders of Wildlife 2 illustrate this development in the context of cases filed under statutory provisions allowing rulemaking challenges to be brought within 60 days of the promulgation of the regulation. 3 In National Mining Ass n v. Dep t of Interior (hereafter NMA v. Interior), 4 the D.C. Circuit at oral argument questioned the mining industry s standing sua sponte in a challenge to the Surface Mining Control and Reclamation Act (SMCRA) regulations, and requested supplemental briefing, even though no party had raised the issue in summary judgment proceedings in the district court or in their opening appellate briefs. After both the industry trade association and the Office of Surface Mining Reclamation and Enforcement (OSM) had argued in favor of standing, the court was satisfied that the industry had standing to challenge a regulation 1 The D.C. Circuit (or its district court) is specified as the venue for judicial review of rulemaking under numerous federal environmental statutes. See, e.g., Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1276(a)(1); Safe Drinking Water Act (SDWA), 42 U.S.C. 300j-7(a)(1); Noise Control Act of 1972, 42 U.S.C. 4915(a); Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6976(a)(1); Clean Air Act (CAA), 42 U.S.C. 7607(b)(1); Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9613(a). Still other environmental statutes specify the D.C. Circuit as an alternative forum. See, e.g., Toxic Substances Control Act (TSCA), 15 U.S.C. 2618(a)(1)(A)(D.C. Circuit or circuit in which petitioner resides or has principal place of business); Mine Safety and Health Act (MSH Act), 30 U.S.C. 811(d)(same). A few environmental statutes define venue solely with reference to the petitioner. See, e.g., Federal Water Pollution Control Act, commonly known as the Clean Water Act (CWA), 33 U.S.C. 1369(b)(circuit in which petitioner resides or transacts business); Occupational Safety and Health Act (OSH Act), 29 U.S.C. 655(f)(circuit in which petitioner resides or has principal place of business). If a rule is challenged in two or more circuits authorized by statute, the cases are consolidated in a single circuit pursuant to 28 U.S.C. 2112(a)(3). 2 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). 3 D.C. Circuit Judge (former Chief Judge) Wald has acknowledged the tightening of standing by her own court and the Supreme Court. See Patricia J. Wald, Thirty Years of Administrative Law in the D.C. Circuit, 11 Ad. Law Bull. No. 13, July 22, 1997, at 1, 7 ( [s]ince the mid-eighties, both our court and the Supreme Court have been tightening up on who can take appeals from agency decisions and when ). 4 National Mining Ass n v. Dep t of Interior (NMA v. Interior), 70 F.3d 1345 (D.C. Cir. 1995). 80

3 STANDING TO CHALLENGE REGULATIONS 3.01 concerning federal enforcement of state regulatory programs under SMCRA. By contrast, in Louisiana Envtl. Action Network v. Browner ( LEAN ), 5 the court ordered supplemental briefing and held that two of the three petitioners an environmental group, and a coalition of regulated utility companies lacked standing to challenge EPA s regulations governing federal-state relations under the Clean Air Act (CAA). 6 The court also held that a third petitioner a coalition of industry trade associations only arguably had standing, and that in any event its challenge was not ripe even though it, like the other petitioners, had sought judicial review within the CAA s seemingly jurisdictional 60-day period for challenging new regulations. 7 The court told these petitioners that they either had not suffered injury by reason of the regulations or that they had to wait until the regulations were actually applied before their challenges would be prudentially ripe for judicial review. 8 NMA v. Interior and LEAN depart from the D.C. Circuit s more receptive view and more flexible analysis of standing in earlier rulemaking challenges, such as its 1988 decision in the landmark SMCRA rulemaking case, National Wildlife Fed n v. Hodel (NWF v. Hodel). 9 The court held that environmental groups had standing and ripe claims against multiple OSM rulemaking actions, rejecting arguments similar to those it would later rely on to question or deny standing in NMA v. Interior and LEAN. 10 To further confuse the issue, a 1997 ruling suggests a return to the court s prior flexibility Louisiana Envtl. Action Network v. Browner ( LEAN ), 87 F.3d 1379 (D.C. Cir. 1996). 6 Id. at See 42 U.S.C. 7401, et seq. 7 Id. 8 Id. at National Wildlife Fed n v. Hodel (NWF v. Hodel), 839 F.2d 694 (D.C. Cir. 1988). The case consolidated 36 appeals involving 14 district court actions and produced a 155- page slip opinion, 29 of which dealt with standing. 10 Id. at Reyblatt v. Nuclear Regulatory Comm n, 105 F.3d 715 (D.C. Cir. 1997)(rejecting government s argument, similar to court s holding in LEAN, that petitioners relationship to challenged regulations was too attenuated to provide standing). Id. at

4 3.02 EASTERN MINERAL LAW INSTITUTE The court s mercurial approach to standing its propensity to raise the issue even when a party does not, its insistence on strict compliance with the constitutional elements of standing in LEAN, and the general uncertainty spawned by its rulings as a whole cuts against Congress s goal of making nationwide environmental regulations judicially reviewable promptly upon promulgation. LEAN seems particularly parsimonious, because in it the federal court specifically charged by Congress with responsibility for reviewing facial challenges to regulations opted out and relegated petitioners to case-specific challenges. While that alternative becomes more attractive to the courts as regulations become increasingly complex, it is equally unattractive to many litigants, who want to achieve legal certainty and avoid costly multiple proceedings. This chapter examines some of the problems presented by the D.C. Circuit s treatment of standing and the related doctrine of ripeness in actions for pre-enforcement judicial review of rulemakings. It describes the uncertainty created by inconsistencies among the decisions themselves, and by the blurring of the constitutional standing doctrine with prudential considerations of ripeness. It also discusses the tension between the narrow view of standing and ripeness and Congress s repeated authorization of pre-enforcement judicial review of regulations issued under federal environmental statutes. It concludes with note of caution for prospective litigants and a plea for clarity in the court s jurisprudence Basic Elements of Standing. Standing involves two components constitutional requirements and prudential limitations. 12 [1] Constitutional Requirements. Under Article III of the Constitution, federal courts are established to resolve cases and controversies, not to decide abstract questions of law. As Justice Stevens succinctly put it, We are not statesmen; we are judges. 13 Standing addresses whether a plaintiff has made out a case 12 See Bennett v. Spear, 117 S. Ct. 1154, 1161 (1997)(collecting cases). 13 Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 103 (1978)(Stevens, J., concurring). 82

5 STANDING TO CHALLENGE REGULATIONS 3.02 or controversy between himself and the defendant whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court s remedial powers on his behalf. 14 To satisfy the case or controversy requirement of Article III, a plaintiff must demonstrate that (1) he or she has suffered, or is immediately threatened with, injury in fact which (2) is fairly traceable to the defendant s action and (3) is likely to be redressed by a favorable judicial decision. 15 These legal elements are settled law and have been reiterated in a long line of decisions by the Supreme Court. 16 But although the elements are simple to state, they are troublesome in their application, as the cases discussed in this chapter will show. [2] Prudential Considerations. Besides having to establish the constitutional elements of injury, causation, and redressability, a plaintiff suing under a federal statute must satisfy judicially self-imposed limits on the exercise of federal jurisdiction. 17 As the Supreme Court originally conceived them, these prudential considerations would ensure that a plaintiff was asserting his own legal rights and interests, and not just (1) a generalized grievance shared in substantially the same measure by all or a large class of citizens, or (2) the legal rights or interests of third parties. 18 More recently, the focus of the prudential inquiry has fallen on whether the plaintiff s grievance falls within the zone of interests protected or regulated by the statutory provision under which he seeks relief. 19 The zone of interests test has been troublesome for industry plaintiffs suing under environmental statutes, because courts have been receptive to the view that economic interests are not protected by statutes whose 14 Warth v. Seldin, 422 U.S. 490, 498 (1975), citing Baker v. Carr, 369 U.S. 186, 204 (1962). 15 Bennett, 117 S. Ct. at See Defenders, 504 U.S. at (collecting cases). 17 Allen v. Wright, 468 U.S. 737, 751, emphasis in text. 18 Id. at 499 (collecting cases). 19 Bennett, 117 S. Ct

6 3.02 EASTERN MINERAL LAW INSTITUTE overall purpose is environmental protection. 20 However, the force of this argument was substantially diminished in the Supreme Court s decision in 1997 in Bennett v. Spear, which made clear that the zone of interests was to be determined by reference to the specific statutory provision on which the plaintiff or petitioner relied, not the general purposes of the statute. 21 Thus, for example, if an environmental statute contains a provision requiring regulations to be based on sound scientific reasoning, it can provide a basis for standing not only for those who fear lax enforcement of environmental protections, but also for those who want to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives. 22 [3] Congress Can Modify Prudential Considerations but Cannot Create Standing. At first glance, rulemaking challenges brought by a regulated industry seem an unlikely candidate for dismissal for lack of standing. When the government sets out to regulate an industry, the inherent burdens of regulation should at the very least gain the industry entry into a courthouse to determine whether those burdens are lawful. As the Supreme Court stated in 1992: When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, 20 See, e.g., Bennett v. Plenert, 63 F.3d 915, 919 (9th Cir. 1995)( only plaintiffs who allege an interest in the preservation of endangered species fall within the zone of interests protected by the Endangered Species Act (ESA) emphasis in text), rev d and remanded, 117 S. Ct (1997); Allied-Signal, Inc. v. Lujan, 736 F. Supp. 1558, 1560 n.3 (N.D. Cal. 1990)(company lacked prudential standing to invoke ESA in opposition to proposed plan for cleaning up hazardous waste, because company s economic goals clearly [we]re unrelated to the objectives Congress sought to further by enacting the ESA ). 21 Bennett, 117 S. Ct. at Id. at

7 STANDING TO CHALLENGE REGULATIONS 3.02 and that a judgment preventing or requiring the action will redress it. 23 An affected industry s ability to challenge the regulations also seems manifest from the plain language of the statutory provisions authorizing rulemaking challenges. When these provisions bother to delineate a class of plaintiffs at all, the language is typically broad, authorizing suit by any person, 24 any interested person, 25 and any person who may be adversely affected, 26 any person who participated in the administrative proceedings and who is aggrieved by the rulemaking. 27 Since there is ordinarily little question that the regulated industry is aggrieved, 28 an industry s standing under these statutes would appear to be a given. Even in challenges brought by a regulated industry, however, standing is not simply a matter of whether the petitioner falls within the statutory language authorizing suit. Because standing is a constitutional requirement, not just a statutory or judge-made limitation, the Supreme Court has held that Congress cannot alter it with the stroke of the legislator s pen. Article III is nothing less than the irreducible constitutional minimum of standing, which, unlike the prudential counterparts, cannot be modified or abrogated by Congress. 29 As Professor Schwartz has pointed out, 30 the Article III formulation was not always this unyielding. For example, Justice Harlan once described the private attorney general doctrine as an instance in which individual litigants are given standing to represent the public despite their lack of economic or other personal interests, because Congress had appropriately authorized such suits. 31 The same flexible view appeared 23 Defenders, 504 U.S. at (emphasis added). 24 TSCA, 15 U.S.C. 2618(a)(1)(A)). 25 CWA, 33 U.S.C. 1369(b); CERCLA, 42 U.S.C. 9613(a). 26 OSH Act, 29 U.S.C. 655(f); MSH Act, 30 U.S.C. 811(d). 27 SMCRA, 30 U.S.C. 1276(a)(1). 28 Defenders, 504 U.S. at Bennett, 117 S. Ct. at 1161 (quoting Defenders, 504 U.S. at 560). 30 Bernard Schwartz, Conundrum Confuted: Bennett v. Spear and Citizen Standing, 11 Ad. Law Bull. No. 12, July 8, 1997, at Flast v. Cohen, 392 U.S. 83, 120, 131 (1968). 85

8 3.02 EASTERN MINERAL LAW INSTITUTE to lie behind the D.C. Circuit s observation in 1988 that, although Congress cannot create standing, it can provide legislative assessments which courts can credit in making standing determinations. 32 Even under the Supreme Court s newer, more rigid view, however, Congress can grant an express right of action to persons who, though they meet the constitutional requirements, otherwise might be barred by prudential standing rules. 33 But however broad the statutory language, the measure of standing is not simply Congress s desire to encourage or facilitate judicial review of rulemakings, but what the Supreme Court has construed to be the Article III elements injury, causation, and redressability. 34 Federal environmental statutes that provide for judicial review of rulemakings typically contain time and forum limitations. 35 Such provisions promote administrative finality and regulatory certainty by allowing prompt judicial review of regulations upon issuance and by centralizing judicial review in a single forum to foreclose conflicting rulings. Insofar as they specify a class of plaintiffs, they also guide the court in applying the prudential zone of interests test for standing. But, under the principles just discussed, they do not alter the constitutional requirements. 32 NWF v. Hodel, 839 F.2d at (holding that Congress s determination that deletion of minimum environmental standards under SMCRA might lead to lessened protection meant that, as to claims raised by environmental groups, Article III causation existed as a matter of law). 33 Warth, 422 U.S. at 501. See Bennett, 117 S. Ct. at 1162 (language of citizen suit provision of ESA, 16 U.S.C. 1540(g), which allows any person to sue any person for any alleged violation, expands zone of interests of ESA citizen suit provision to its constitutional limits; therefore, persons with economic interests, not just those with environmental interests, can have standing); NWF v. Hodel, 839 F.2d at 704 n.7 (prudential requirement satisfied in environmental groups rulemaking challenge because language and legislative history of SMCRA citizen suit provision, 30 U.S.C. 1270, signaled Congressional intent that standing be coterminous with constitutional limits). 34 See, e.g., LEAN, 87 F.3d at 1382 (rulemaking challenge under CAA); NMA v. Interior, 70 F.3d at 1349 (rulemaking challenge under SMCRA); National Coal Ass n v. Lujan (NCA v. Lujan), 979 F.2d 1548, (D.C. Cir. 1992)(same). 35 E.g., SMCRA 526(a)(1), 30 U.S.C. 1276(a)(1)(60-day limitation period, in U.S. District Court for District of Columbia); CWA 509(b), 33 U.S.C. 1369(b)(120 days, 86

9 STANDING TO CHALLENGE REGULATIONS. Standing, Ripeness, and Statutory Limitations. [1] The Intrinsic Standing Issue in Rulemaking Challenges. When standing issues arise in cases brought under statutory provisions authorizing pre-enforcement judicial review of regulations, the key issue often is whether the petitioner has suffered injury by reason of the regulations. Analytically, injury is an inherent problem in facial rulemaking challenges, because suit must be brought within two to three months after the regulation is issued usually before the regulation has been applied in a concrete setting. Pre-enforcement rulemaking challenges are sui generis, as the Supreme Court explained in 1990: Under the APA [Administrative Procedure Act], [plaintiff] must direct its attack against some particular agency action that causes it harm. Some statutes permit broad regulations to serve as the agency action, and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action ripe for judicial review under the APA until the scope of controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant s situation in a fashion that harms or threatens to harm him. 36 The Court s remarks suggest that actions for pre-enforcement review of regulations are a poor fit for the conventional standing analysis. The injury arises not from a regulation s immediate and direct impact upon in federal court of appeals in whose jurisdiction such person resides or transacts business); CAA 307(b), 42 U.S.C. 7607(b)(60 days, D.C. Circuit); SDWA, 42 U.S.C. 300j- 7(a)(45 days, D.C. Circuit); Noise Control Act 16(a), 42 U.S.C. 4915(a)(90 days, D.C. Circuit); RCRA 7006(a)(1), 42 U.S.C. 6976(a)(1)(90 days, D.C. Circuit). 36 Lujan v. National Wildlife Fed n, 497 U.S. 871, 891 (1990). SMCRA epitomizes the purely legal quality of pre-enforcement judicial review of rulemakings because, under SMCRA, challenges to national surface coal mining rulemakings must be brought in the District of Columbia even though no coal mines are located there. 30 U.S.C. 1276(a)(1). 87

10 EASTERN MINERAL LAW INSTITUTE the petitioner, but from Congress s recognition of the inevitability of regulatory burdens as time moves forward. In standing parlance, the injury is not actual, but only imminent, and thus is susceptible to claims that it is insufficient to create a justiciable case or controversy. 37 Besides having to cope with this vagary, petitioners pay a further price for access to pre-enforcement review. Under the facial challenge doctrine, they must show that the regulation is invalid in all of its applications, not just that it may be unlawful in a given set of circumstances. 38 Arguments that might prevail in a fact-specific context such as defending against agency enforcement proceedings can fail under this more demanding standard. 39 Because pre-enforcement judicial review of a regulation occurs before the regulation itself causes actual injury to a petitioner, a potential standing issue lurks in virtually every rulemaking challenge. In some instances the alleged lack of injury is a function of the subject matter of the regulations for example, regulations that impose substantive standards may be perceived to threaten more immediate injury (and thus may be deemed more suitable for immediate review) than regulations that merely establish a general framework for regulation or coordinate federal and state programs. In other instances, the focus is on timing. In them, despite the constraints imposed by statutory limitations periods, standing can fail as much from when suit is brought as from who brings it, and also from a plaintiff s failure to meet the increasing burden of proof on standing at 37 Defenders, 504 U.S. at Reno v. Flores, 507 U.S. 292, (1993). Under general standing principles, the determination of a law s legality in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function. International Longshoremen s & Warehousemen s Union v. Boyd, 347 U.S. 222, 224 (1954). As Justice Scalia, writing for a seven-member majority, explained in Reno v. Flores, a court reviewing a facial challenge has... no findings of fact, indeed no record, concerning the [agency s] interpretation of the regulation or the history of its enforcement. [It has] only the regulation itself and the statement of basis and purposes that accompanied its promulgation. To prevail in such a facial challenge, [a petitioner] must establish that no set of circumstances exist under which the [regulation] would be valid. United States v. Salerno, 481 U.S. 739, 745 (1987). 507 U.S. at See, e.g., Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2414 (1995). 88

11 STANDING TO CHALLENGE REGULATIONS successive stages of the litigation. In the cases discussed below, the interplay of subject matter and timing has led to a confusing jurisprudence on this important jurisdictional requirement. [2] Overcoming the Intrinsic Obstacles the Flexible Approach of NWF v. Hodel. A useful starting point for analyzing the variegated treatment of standing in D.C. Circuit rulemaking challenges is the court s 1988 ruling in NWF v. Hodel. 40 In that decision, the court rejected a multi-pronged industry attack on the standing of environmental groups to challenge surface mining performance standards issued under SMCRA. The mining industry argued that the plaintiffs had failed to allege a constitutionally adequate injury from the regulations they had challenged and, with respect to some of the regulations, that they had failed to satisfy the causation element as well. 41 The court divided the standing issues into two broad categories: (1) instances in which OSM had eliminated its prior minimum national environmental standards, and (2) instances in which it had promulgated revised standards. 42 In the first category, the court described causation as the more difficult issue. 43 The industry made a threefold argument: first, that because the states in implementing their surface mining programs could adhere to the initial regulatory minimums established in 1979 even though OSM had proposed to eliminate them in one of the rulemakings at issue, the plaintiffs fear of laxer standards was premature; 44 second, that the new, more nebulous regulations could still be interpreted to conform to the previous minimum standards; and third, that the environmental F.2d Id. at 703. The industry, besides being a plaintiff in many of the cases that had been consolidated for appeal, had intervened on OSM s side in the challenges brought by the environmental groups. Id. OSM itself did not contest the environmental groups standing. Id. at 703 n Id. at Id. at SMCRA enables any state to assume exclusive jurisdiction over the regulation of surface coal mining operations within its borders by obtaining OSM s approval of the state s program. 30 U.S.C. 1253(a). 89

12 EASTERN MINERAL LAW INSTITUTE groups alleged injury could arise only after OSM or a state regulatory authority made a future discretionary decision that may be either favorable or unfavorable to them. 45 The court rejected all three arguments, noting at the outset that they related as much to ripeness as they did to causation. 46 It found industry s first argument irrelevant, given that in some states, surface coal mining operations were directly regulated by OSM s standards, not by a state program. 47 As to the second argument, the court held that it strains credulity to think that OSM, in eliminating the minimum standards, sought to encourage mining operations to provide greater environmental protection than the previous regulations required. 48 Of particular importance, the court found that the legislative history concerning the need for specific regulations supported an inference that causation a constitutional requirement existed as a matter of law. 49 The court also rejected the industry s third argument, which the court said was based on a line of distinguishable cases concerning whether the existence of an intervening discretionary authority blocks standing and/ or ripeness. 50 In the court s view, those cases involved attempts to overturn rules or enactments before such enactments have been enforced against [the challengers] personally, 51 whereas the challenge in this case was to currently operative rules that require no act of administrative discretion to affect environmentalist plaintiffs. 52 Regardless of whether the future operation of the regulations in a concrete setting would harm these plaintiffs, the court apparently deemed them as injured by the mere existence of the regulations because, in the court s view, the regulations 45 See id. at Id. at Id. 48 Id. 49 Id. at Id. at 709 (citing Brown v. Hotel Employees, 468 U.S. 491 (1984); Pacific Gas & Elec. v. Energy Resources Conservation & Dev. Comm n, 461 U.S. 190 (1983); International Longshoremen s & Warehousemen s Union v. Boyd, 347 U.S. 222 (1954); Cabais v. Egger, 690 F.2d 234 (D.C. Cir. 1982)). 51 Id. at Id. (citing Japan Whaling Ass n v. American Cetacean Soc y, 478 U.S. 221 (1986)). 90

13 STANDING TO CHALLENGE REGULATIONS left them with diminished environmental protection. They could properly sue because conduct harmful to them that was previously regulated might now go unregulated and furnish no reviewable act of agency discretion to provide a basis for judicial review. The court s analysis of standing for the second category of the environmental groups rulemaking challenges also focused on causation. Industry argued that the alleged injury from some of the regulations was too remote and speculative to support standing. The industry argued that such injury hinged on the chance occurrence of multiple unlikely contingencies. 53 The court denounced this argument: Industry s legal pointillism only underscores to us the importance of reading the causation requirement with an eye toward reasonableness; for if it is not so read, as Professor Tribe has noted, it becomes highly manipulable, and focusing on it alone poses a serious risk that in the guise of causality analysis, federal courts will engage in an unprincipled attempt to screen from their dockets claims which they substantively disfavor. 54 In retrospect, three aspects of the court s analysis stand out. First, the court did not conduct a plaintiff-specific evaluation of causation (as would seem to be required if Congress could not alter the Article III elements), but held that it existed as a matter of law because the legislative history implied that Congress had so intended. Second, within the context of this challenge, it should not have mattered that the regulations were currently operative, as the court asserted 55 the plaintiffs had sought pre-enforcement review based on an administrative record. In this connection, the court went out of its way 53 Id. at 710 & n.13 (discussing industry s argument that the alleged injury from the regulation concerning subsidence bonding could occur only upon the concurrence of multiple separate events, including that subsidence cause damage, that the mining operator not repair the damage, and that the operator s insurance required by 30 U.S.C. 1257(f) be insufficient to repair the damage). 54 Id. at 710 n.13 (quoting Lawrence H. Tribe, American Constitutional Law 93 (1st ed. 1978)). 55 NWF v. Hodel at

14 EASTERN MINERAL LAW INSTITUTE and, unfortunately, overlooked another provision of the statute to find that the plaintiffs were entitled to standing at this stage because they might have no opportunity later to contest the agency s failure to implement SMCRA s requirements adequately. SMCRA s citizen suit provision, 30 U.S.C. 1270, provides just such a mechanism. It authorizes any person having an interest which is or may be adversely affected to sue to compel the government s compliance with the statute if OSM or a state regulatory authority fails to perform any nondiscretionary act or duty under the statute. 56 It is that provision not SMCRA s provision for preenforcement judicial review of rulemakings, as the court asserted, 57 which Congress meant to be construed to be coterminous with the broadest standing requirements enunciated by the U.S. Supreme Court. 58 The court s failure to take the citizen suit provision into account raises just the concern voiced by Professor Tribe that the court said it was trying to avert the impression of manipulating standing in furtherance of some substantive agenda. Also illustrative of that concern is the third noteworthy point about NWF v. Hodel its treatment of the contingencies that industry argued precluded standing for these plaintiffs under a fact-specific analysis of causation. The court emphatically rejected that analytical approach but would later embrace it in LEAN disaggregating a plaintiff s allegations so as to make them hinge on the occurrence of multiple contingencies as a means of defeating standing at the rulemaking stage. 59 [3] The Ossification of the Standing Analysis. The subject matter of a regulation usually provides solid ground for a regulated industry s standing the industry can claim injury simply by reason of being an object of the [regulation] at issue. 60 Questions do arise, however, when a regulation applies only indirectly or sets up an U.S.C Id. at H.R. Rep. No. 218, 95th Cong., 1st Sess. 90 (1977), quoted in NWF v. Hodel, 839 F.2d at See infra [3][c]. 60 Defenders, 504 U.S. at 561. See also NWF v. Hodel, 839 F.2d at 703 (no one could seriously contest the standing of the industry plaintiffs.). 92

15 STANDING TO CHALLENGE REGULATIONS overall structure for regulation, rather than creating substantive standards for compliance by the regulated entities. In a series of three cases decided by the D.C. Circuit between 1992 and 1996, the industry found standing increasingly problematic. First, in 1992, the government challenged industry s standing in a SMCRA rulemaking case, but the court rejected that argument. Then, in another SMCRA rulemaking challenge in 1995, the court itself questioned industry s standing, but ultimately upheld it. Finally, in 1996 the court took a rigid view of the Article III elements and dismissed both industry and environmental group challenges to a rulemaking under the CAA for lack of standing. [a] Government Unsuccessfully Challenges Industry s Standing. In the 1992 case, industry challenged regulations issued by OSM concerning the imposition of individual civil penalties under SMCRA. OSM questioned whether an industry trade association had standing inasmuch as the penalties were directed against individuals, not against the companies that made up the trade association. 61 In the spirit of NWF v. Hodel, the D.C. Circuit found OSM s argument utterly unpersuasive. 62 It held that the trade association had standing because the member companies own interests were vitally affected [t]he very purpose of the individual penalties for which [SMCRA] provides is to impel permittee compliance with SMCRA by giving those who act for the corporation strong cause to adhere to the law and to abate violations promptly. 63 [b] Court Questions Industry s Standing but Relents. Neither that ruling nor the court s apparent receptivity to industry s standing in NWF v. Hodel cleared the way for industry in all SMCRA rulemaking challenges. In 1995, a different panel of the D.C. Circuit sua sponte questioned industry s standing to challenge OSM s regulations concerning the allocation of enforcement authority between it and state 61 NCA v. Lujan, 979 F.2d at Id. at 1551; see NWF v. Hodel, 839 F.2d at NCA v. Lujan, 979 F.2d at

16 EASTERN MINERAL LAW INSTITUTE regulatory authorities. 64 Under SMCRA s idiosyncratic scheme of state primacy, each state can assume exclusive jurisdiction over surface coal mining operations within its borders by obtaining OSM s approval of a state program. 65 The grant of exclusive jurisdiction, however, is subject to the federal oversight authority vested in OSM under SMCRA s intricate enforcement provisions. 66 In 1986, the industry filed a rulemaking petition asking OSM to revise its regulation that allowed OSM to issue a notice of violation to a state permittee in a state-program state if the state failed to respond adequately when OSM notified the state that the permittee s mine might be violating its surface mining permit, the state program, or any other requirement of SMCRA. 67 When OSM denied the petition, the industry sought judicial review in the U.S. District Court for the District of Columbia as required by SMCRA s judicial review provision, 68 and appealed the district court s unfavorable ruling to the D.C. Circuit. 69 Neither the government nor the environmental group intervenors had contested the industry s standing in the district court or in their principal briefs to the court of appeals. The court, however, raised the issue at oral argument. 70 The court had perceived no injury to the industry because, 64 NMA v. Interior, 70 F.3d at U.S.C. 1253(a) U.S.C See 30 C.F.R (a)(2) U.S.C. 1276(a)(1). 69 See NMA v. Interior, 70 F.3d at This case illustrates the insidious character of standing. It is an essential and unchanging predicate to any exercise of [the court s] jurisdiction. Florida Audubon Society v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)(quoting Defenders, 504 U.S. at 560). As such, it can be raised at any stage of the litigation by any party or by the court itself, which is under a duty to examine its own jurisdiction, particularly the plaintiff s standing. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). For a more dramatic illustration of these principles, see the discussion in [5][c] infra concerning a recent Third Circuit ruling in a citizen suit to enforce the CWA against an alleged polluter. In that case, following the penalty stage of bifurcated proceedings, the court held that the plaintiffs lacked standing even though the district court at earlier stages of the litigation had overruled challenges to their standing, and the court of appeals had affirmed that 94

17 STANDING TO CHALLENGE REGULATIONS whether enforcement were carried out by the federal agency or by its state counterparts, mine operators would be subject to regulation. 71 After directing the parties to file supplemental briefs, however, the court held that the industry did have standing. It accepted industry s two major arguments: first, that these rules, like the individual civil penalty rules at issue in NCA v. Lujan, were designed to compel mine operators to comply with SMCRA and state surface mining laws; and second, that to the extent the rules created uncertainty and actual conflicts between OSM and state regulatory authorities which would force mine operators to expend money to satisfy one and then the other, the industry had satisfied the injury-in-fact prong of Article III standing. It still dismissed the case, however, for industry s failure to seek judicial review of the regulations within 60 days of their issuance, as SMCRA prescribes. 72 [c] Court Rejects All Challengers Standing. Concerns similar to those raised by the court in NMA v. Interior underlay the court s holding seven months later in a multi-petitioner challenge to regulations issued by the Environmental Protection Agency (EPA) under the CAA. Like the regulations at issue in NMA v. Interior, these regulations dealt with approval of state programs to implement the federal statute. In LEAN, the court held that neither industry nor environmental groups had standing to challenge EPA s delegation rules which established standards holding. Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, (3d Cir. 1997). 71 NMA v. Interior, 70 F.3d at See 30 U.S.C. 1276(a)(1). The government, while assuring the court that its policy was to raise all meritorious defenses, including standing, wherever appropriate, urged that the industry had standing simply because SMCRA authorizes pre-enforcement judicial review of nationwide regulations. Supplemental Brief for the Federal Appellees (Oct. 23, 1995) at 3-4 (discussing 30 U.S.C. 1276(a)(1)). This argument, which the court did not address, sounds reasonable and comports with NWF v. Hodel but skirts the Supreme Court s holdings that Congress cannot, by statute, alter the irreducible constitutional minimum of injury, causation, and redressability. See Warth, 422 U.S. at 501; Defenders, 504 U.S. at 560. Whether the government s litigating position signals its view that the industry would always have standing to challenge nationwide rulemakings under SMCRA (or other federal statutes with similar judicial review provisions) is unclear. By not opposing standing, OSM may simply have wanted the court to reach the further 95

18 EASTERN MINERAL LAW INSTITUTE and procedures for determining whether to approve a state s air pollution program under the CAA. The regulations implemented 112(l) of the CAA, 73 which allows EPA to delegate its authority and responsibility to implement air-pollution requirements to a state if the state s air pollution program receives EPA approval. The regulations established procedures for deciding whether EPA should approve state rules or programs and what the ramifications of such approval would be. 74 The regulations under CAA 307(b)(1)which provide that challenges to regulations be filed in the D.C. Circuit within 60 days after promulgation 75 were challenged by three groups of petitioners: a coalition of environmental groups, a group of utility companies and utility trade associations, and a group of general industry trade associations. 76 Each group of petitioners laid its own claim to standing, but only one the general industry petitioners came close to succeeding. The environmental petitioners claimed they were injured because the delegation rules permitted EPA not to enforce federal standards in a given state as soon as EPA approved a state s proposed program, creating a potentially harmful enforcement gap if a state seeks EPA approval before actually putting its program into effect. 77 The court held that these and, for OSM, the more critical jurisdictional issue of whether, given SMCRA s 60-day limitations period for challenging regulations, the industry could challenge a regulation outside that period by petitioning for a rulemaking and then seeking judicial review of the regulation once OSM denied the petition. If this was the government s strategy, it worked. Once the court found the industry had standing, it reached the 60-day issue and ruled in OSM s favor, affirming the district court s dismissal of the case. NMA v. Interior, 70 F.3d at U.S.C. 7412(l). 74 LEAN, 87 F.3d at 1380 (discussing 40 C.F.R ). Under the rules, the federal government would enforce an approved state program in place of the federal regulations that otherwise would apply. 40 C.F.R See 42 U.S.C. 7607(b)(1). The only exception to the 60-day provision is for a petition based solely on grounds arising after the sixtieth day, in which case the petitioner is given until 60 days after the grounds arise. Id. 76 See 87 F.3d at The general industry petitioners included the Clean Air Implementation Project, the Chemical Manufacturers Association, and the American Automobile Manufacturers Association. Id. 77 Id. at

19 STANDING TO CHALLENGE REGULATIONS petitioners had not demonstrated sufficient injury for standing. Noting the generalized nature of their alleged interest in air quality, 78 the court held that these petitioners had failed to establish concrete and personal injury because: (1) if no state were to seek delegation of authority, there would be no enforcement gap ; (2) even if a gap were to occur in one state, the court could not assume that it would affect areas actually frequented by these petitioners; and (3) there was no showing that a gap was imminent, given the multi-tiered speculation that a gap would occur. 79 Parsing the theory of causation underlying these petitioners claim of injury, much as industry had unsuccessfully urged the court to do in NWF v. Hodel, 80 the court explained that a gap would not occur unless (1) a state seeks to substitute its program for the federal standards, (2) the state s regulations are not in effect at the time EPA might approve the state s program, and (3) EPA, despite the lack of state regulations currently in place, approves the state program. 81 The utility petitioners, despite challenging the regulations as overrestrictive rather than under-restrictive, and despite the assurances in Defenders and NWF v. Hodel that there is ordinarily little question about the injury of a person who is the object of government action, 82 fared no better than the environmental groups. The utilities alleged injury from the invasion of rights that would occur if EPA were to approve a state requirement and enforce it as a federal requirement even though it was more stringent than EPA could implement on its own under the CAA. 83 The court held that this injury was too hypothetical to establish standing, because these petitioners had identified no state never mind a state in which one of the utilities petitioners operates that has adopted any more stringent rule which is or is about to be federalized by the EPA. 84 Distinguishing its holding in NMA v. Interior that the industry had standing 78 As the court explained, [I]t is difficult to imagine a grievance more generalized than one shared by all persons who breathe. Id. 79 Id. at See supra [2]. 81 Id. 82 Defenders, 504 U.S. at ; NWF v. Hodel, 839 F.2d at LEAN, 87 F.3d at Id. at

20 EASTERN MINERAL LAW INSTITUTE to challenge state implementation regulations under SMCRA, the court explained that, even assuming such a state would seek federal enforcement of its CAA requirements, the enforcement of state regulations by state and federal agents, instead of solely by state agents, hardly impends certain injury to the utilities. 85 The other group of industry petitioners, despite being similarly situated as the utilities vis-a-vis these regulations, managed to convince the court that they might have standing. Doing so, however, required a blunderbuss litigation strategy the kind of tactic courts usually discourage. They made the same arguments the utilities made, but added, according to the court, a galaxy of likely circumstances in which they might have to comply with new state standards that require EPA approval shortly before some compliance deadline, without giving them time to respond accordingly. 86 The court found that this allegation, unlike the multi-tiered conjectures of the other petitioners, may in fact approach a showing of injury. 87 But even then, the court stopped short of a holding that these petitioners had shown constitutional standing, and instead dismissed them, with echoes of the mining industry s unsuccessful challenge to environmental group standing in NWF v. Hodel, because their claim was assuredly prudentially unripe. 88 Unlike their utility industry counterparts, the general industry petitioners in LEAN at least had the benefit of an analysis that accounted for, rather than parsed away, Congress s intent to provide for preenforcement judicial review of CAA regulations. But the reason for the differing treatment is not clear. Their claims, like the other petitioners claims, could be disaggregated into a chain of contingencies such as whether any state would adopt standards, whether the state standards would be more stringent than the federal standards, whether the state would be one in which the petitioner industries operate, and whether EPA would federalize the state standards. Yet the court opined that the further alleged injury whether there would be insufficient notice and time to comply 85 Id. (emphasis in original). 86 Id. at Id. 88 Id. 98

21 STANDING TO CHALLENGE REGULATIONS unlike the multi-tiered conjectures of the other petitioners, may show sufficient injury for standing. 89 This is a perplexing distinction. Whether there would be sufficient opportunity to comply would appear to be no less contingent than the scenarios for which the court had denied standing to the other petitioners. It no doubt reassures a regulated industry to know that it might have standing in such circumstances. But it is equally unsettling that (1) standing appeared to boil down not to potential injury, but to the superior guesswork of the general industry petitioners lawyers, who added a claim of injury that the utilities could just as plausibly have raised but did not; and (2) the court s rigid application of the Article III elements overlooked its earlier assessment in NWF v.hodel that industry standing could not be seriously contest[ed] 90 and one of its grounds for finding industry standing in NMA v. Interior that the regulations, whatever their direct impact, were part of a scheme aimed at compelling the industry s compliance with the law. 91 It is also difficult to fathom why the court tangled with standing at all and did not simply dismiss all three petitioners on ripeness grounds alone. What the court said of the general industry petitioners was true of the other petitioners as well that, as a prudential matter, judicial review could be postponed to wait for a rule to be applied [to see] what its effect will be, 92 and that there was no pressing need to decide the rulemaking challenges at that time, because the petitioners alleged harm would not result from these regulations themselves, but from a future injury that may result from programs that are approved under the regulations. 93 [4] The Blurring of Standing and Ripeness. [a] The Consequences of Suing Too Early. The court s decision in LEAN, like its ruling in NMA v. Interior, underscores that the timing of a challenge to regulations can be as critical as subject matter in determining whether the challenger has standing. At 89 Id. at 1384 (emphasis added). 90 NWF v. Hodel, 839 F.2d at 703) 91 See NMA v. Interior, 70 F.3d at LEAN, 87 F.3d at 1385 (quoting Diamond Shamrock v. Costle, 580 F.2d 670, 674 (D.C. Cir. 1978)). 93 Id. at 1385 (citing Cronin v. FAA, 73 F.3d 1126, 1133 (D.C. Cir. 1996)). 99

22 EASTERN MINERAL LAW INSTITUTE first blush, the timing of a challenge to an agency rulemaking under a typical federal environmental statute does not seem problematic. The statutes themselves seem to supply the answer the challenge must be brought within a prescribed period, usually 60 or 90 days after the agency issues the regulation, unless the grounds for the challenge arise solely outside that period. Yet, as the industry had argued in NWF v. Hodel and as LEAN shows, standing can depend on when suit is brought as well as on who brings it. In LEAN, the court observed that the threshold issues of constitutional standing and prudential ripeness, though nominally distinct, often blur in practice. 94 In the court s view, this acknowledged unclarity... rarely undermines the soundness of judicial results. 95 The soundness of this self-assessment is itself questionable. The blurring of standing and ripeness has turned the rulemaking challenges into guesswork, despite the clarity with which Congress addressed timing in most environmental statutes. Consider the two groups of industry petitioners in LEAN. When the court dismissed the utilities for lack of standing, it acknowledged that the dismissal may partake of ripeness as well as of standing, but found the intermingling of doctrines neither surprising nor troublesome because these threshold doctrines relate... in different though overlapping ways to an idea, which is more than an intuition but less than a rigorous or explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government. 96 This is a grand rationale, but it does little to explain why the court dismissed the utilities for lack of standing while intimating in dicta that the industry petitioners may have satisfied that jurisdictional element. The utilities lost out because the regulations had not taken hold in a way that they claimed would injure them i.e., no state had yet adopted any more 94 LEAN, 87 F.3d at 1386 (citing Flast v. Cohen, 392 U.S. 83, (1968); Winpisinger v. Watson, 628 F.2d 133, (D.C. Cir.), cert. denied, 446 U.S. 929 (1980)). 95 Id. 96 Id. at 1384 (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)(quoting Vander Jagt v. O Neill, 699 F.2d 1166, 1178 (D.C. Cir. 1982)(Bork, J., concurring)). 100