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ELI Professional Practice Seminar: The Future of Standing in Environmental Cases--Trends in the DC Circuit and Beyond

May 15, 2013

The doctrine of "standing" determines whether any potential plaintiff, from an environmental NGO to a regulated company, can be heard in federal court. But applying the seemingly straightforward elements of "injury in fact," "causation," and "redress" that define Article III constitutional standing has often proven vexing for courts and litigants alike.

Over the last year, the U.S. Court of Appeals for the D.C. Circuit, the second-most important court in the nation, has issued a number of dispositive rulings on standing in environmental cases. For example, the court has rejected: two industry challenges to federal agency actions bearing on Clean Water Act jurisdiction; an animal welfare group’s challenge to the treatment of Asian elephants by a circus; industry challenges to EPA’s "timing" and "tailoring" determinations in the blockbuster greenhouse gas regulation cases; and industry arguments against EPA’s approval of an ethanol-gasoline blend ("E15").

Is the standing doctrine shifting in ways requiring practitioners to adjust their pleadings? What pitfalls should environmental practitioners be careful to avoid? How, if at all, do the elements of standing change in the context of climate litigation? ELI invited a panel of legal experts to take stock of standing jurisprudence in the DC Circuit. They also offered thoughts on how standing in the DC Circuit may differ from that in other courts, and on what we might expect from the Supreme Court in light of Clapper v. Amnesty International.

Panelists:
F. William Brownell, Partner, Hunton & Williams (moderator)
Amanda Leiter, Associate Professor, American University, Washington College of Law
Thomas Lorenzen, Assistant Section Chief, Environment & Natural Resources Division, Department of Justice
Roger R. Martella, Jr., Partner, Sidley Austin LLP
Allison Zieve, Director, Litigation Group, Public Citizen

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