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Standing on Public Lands

Wednesday, February 13, 2019
James M. McElfish, Jr.

James M. McElfish, Jr.

Senior Attorney; Director, Sustainable Use of Land Program

In litigation involving public lands, the first response from today's U.S. Department of Justice is almost always to contest plaintiffs’ standing.

U.S. Supreme Court decisions and numerous federal court decisions over the last several decades have effectively resulted in two evidentiary phases in most of these cases—first, proof of standing as a constitutional threshold, and second, only if standing is maintained, consideration of the evidence supporting the case on the merits. The standing phase is particularly relevant for public interest plaintiffs in public lands cases; it can require a more exacting showing from those seeking to vindicate public interests than from those asserting private economic interests.

A plaintiff must clear these hurdles: showing an injury-in-fact (both concrete and particularized, and actual or imminent), fairly traceable to the defendant’s actions, and redressable by the court should the plaintiff prevail. And the plaintiff must show that its claim is within the “zone of interests” the law at issue is designed to protect. Litigants asserting economic interests, such as the ability to extract resources, often find these standards easy to meet. As then-Judge Brett Kavanaugh writing for the D.C. Circuit found in 2017 (Carpenters Indus. Council v. Zinke), standing exists if the cost of substituting other resources is more than zero. “Unless the company can fully replace the source of supply at zero additional cost to the company (and by zero, we mean zero), then the company has suffered an economic harm. That is Economics 101 and Standing 101.” But environmental organizations, recreational users, Native American tribes, and other public interest plaintiffs often suffer injuries that are more complex to demonstrate to a court, such as injuries to interests in wildlife, recreation, scenic resources, protection of natural and archeological features, clean water, access to federal records, and accountability of government processes. For these, the plaintiffs must make specific showings that rely on particularized injury and clear chains of causation that can be harder to trace.

Public Lands

Plaintiffs have shown in a variety of recent cases how these hurdles can be cleared. It requires planning and identification of multiple member-affiants with a range of injuries in very specific locations. For example, a geographical nexus can be demonstrated between a plaintiff’s use of land in a few locations and injury inflicted by a wide-ranging change in federal management policy. And, even at a distance of many miles, injury to public resources can be experienced in ways that support standing. This is particularly important given the Supreme Court’s holding in Summers v. Earth Island Institute that standing must be maintained throughout every phase of the litigation. This can be an easier showing for a perpetual corporation with economic interests than for a small group of individual members upon which public interest associational standing depends.

A recent review by ELI of over 100 public lands decisions in federal court since the turn of the 21st century shows that standing for public interest plaintiffs remains complex, but achievable. Unless and until further additional developments in standing law support the importance of redressing injury to public resources on behalf of all of us, plaintiffs need to follow promising avenues in the case law to ensure access to the courts.

Important developments include the recognition by federal courts that injuries in specific locations implicate governmental actions across broader geographies, and the D.C. Circuit’s understanding that a “substantial probability” of environmental harm remains a viable instance of “actual or imminent” for purposes of standing. The zone of interests test has been undergoing doctrinal change at the Supreme Court, which recently restated this “undemanding” test as one of statutory interpretation rather than “prudence.” This matters. In 2018, after an initial false start, the Ninth Circuit confirmed in Havasupai Tribe v. Provencio that the Federal Land Policy and Management Act’s zone of interest was sufficiently broad to encompass environmental claims concerning mineral interests in areas withdrawn from mineral location. NEPA and other laws also have broad zones of interests.

As a nation of laws, where access to the courts remains critical, we should ensure there is no asymmetry in access to courts based on whether the interests to be vindicated are private (economic) interests in the public lands, or public (environmental, cultural, or recreational) interests in these same lands. Promising paths forward are identified in Developments in Standing for Public Lands and Natural Resources Litigation and include understanding of risks, advances in organizational standing, and the roles of tribes and states.

If standing is broad anywhere, it should be to ensure that the executive branch adheres to law in making the myriad trade offs in administering the complex public lands laws enacted over the last century-and-a-half. Commitments of public lands and resources can be irretrievable and should be subject to careful review and accountability on the merits wherever possible.