NEPA's Zone of Interests

Washington University Journal of Law & Policy Volume 25 Access to Justice: The Social Responsibility of Lawyers January 2007 NEPA's Zone of Interests Kenley S. Maddux Follow this and additional works at: https://openscholarship.wustl.edu/law_journal_law_policy Part of the Law Commons Recommended Citation Kenley S. Maddux, NEPA's Zone of Interests, 25 Wash. U. J. L. & Pol’y 189 (2007), https://openscholarship.wustl.edu/law_journal_law_policy/vol25/iss1/10 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Journal of Law & Policy by an authorized administrator of Washington University Open Scholarship. For more information, please contact . NEPA’s Zone of Interests Kenley S. Maddux∗ The National Environmental Policy Act (“NEPA”) is a central federal environmental conservation statute.1 It requires federal agencies to consider the environmental impacts of their actions and to incorporate environmental values into their decisionmaking.2 Private parties injured by agency noncompliance with NEPA may be able to sue in federal court for an injunction mandating NEPA compliance.3 Common harms in the reported NEPA cases include damage to property,4 recreational opportunities,5 and aesthetic values.6 ∗ J.D. (2007), Washington University School of Law; B.A. (2003), The Ohio State University. The author thanks all who helped him directly and indirectly to bring this Article into being, particularly his family, the Honorable Rodney W. Sippel, Neil M. Richards, Ann Davis Shields, and the Journal of Law & Policy. 1. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–47 (2000). NEPA has been called “the magna carta” of environmental legislation. DANIEL R. MANDELKER, NEPA LAW AND LITIGATION, § 1.1 (2d ed. 2006). 2. See infra Part I.A for a discussion of NEPA’s mandatory procedures. NEPA’s most significant provision, the environmental impact statement (“EIS”) requirement, applies only to federal actions with significant environmental impacts. 42 U.S.C. § 4332 (2000). However, the threshold issue of whether the EIS requirement applies requires agencies to consider and weigh the environmental impacts of their actions. See infra Part I.A (discussing the NEPA process). NEPA’s purpose is arguably served even when an agency chooses to avoid it by pursuing an alternative with a low environmental impact. 3. See infra Part I.B for a discussion of NEPA suits and remedies. 4. See, e.g., Knaust v. City of Kingston, 978 F. Supp. 86, 90 (N.D.N.Y. 1997) (discussing the effect of polluted runoff on property) vacated by 157 F.3d 86 (2d Cir. 1998). Knaust is discussed infra at note 44. 5. See, e.g., United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 678, 686–88 (1973) (discussing the inability to use wildlife areas for “camping, hiking, fishing, sightseeing, and other recreational [and] aesthetic purposes”). 6. Id.; see also Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (“[a]esthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process”). 189 Washington University Open Scholarship p 189 Maddux book pages.doc 190 Journal of Law & Policy 5/23/2008 [Vol. 25:189 Before a private party can sue to enforce NEPA, the party must establish its standing.7 The standing of private parties to bring actions under NEPA is the focus of this Note.8 Specifically, this Note focuses on the zone of interests test for prudential standing.9 This judicially created requirement bars plaintiffs asserting injuries outside the zone of interests of the statutory provision on which they rely.10 A circuit split has formed regarding the application of the zone of interests test to NEPA.11 The Ninth Circuit Court of Appeals recently held that purely economic interests are not within the zone of 7. See infra Part I.C for a general discussion of standing in NEPA cases. It may be worth noting here that modern standing doctrine has been attacked by scholars calling for its reform or demise. See generally Nancy C. Staudt, Modeling Standing, 79 N.Y.U. L. REV. 612, 670–83 (2004) (describing normative critiques of standing jurisprudence advanced by various scholars); see also infra note 48 (presenting critiques of modern standing jurisprudence based on precedent). Some scholars argue that the current standing requirements misinterpret the Constitution. E.g., Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 MICH. L. REV. 163, 166–67 (1992) (calling the injury in fact requirement “a misinterpretation of the Administrative Procedure Act and Article III”). Others criticize a perceived flexibility in the doctrine which allows judges to insert personal ideology into the process. E.g., Richard J. Pierce, Is Standing Law or Politics?, 77 N.C. L. REV. 1741, 1744 (1999) (arguing that modern standing law is characterized by a “high degree of doctrinal malleability and result-oriented doctrinal manipulation” by judges). This debate is beyond the scope of this Note. 8. This Note addresses standing to bring suit only. Standing of private parties to intervene in NEPA suits is closely related, but the issues are not identical. See generally Juliet Johnson Karastelev, Note, On the Outside Seeking In: Must Intervenors Demonstrate Standing to Join a Lawsuit?, 52 DUKE L.J. 455 (2002) (describing law of intervenor standing and arguing that standing should apply to intervenors only when they assert or defend a legal claim). One point of difference is that Rule 24 of the Federal Rules of Civil Procedure may be a bar to intervenors, but not to plaintiffs. FED. R. CIV. P. 24. While the analysis and conclusions of this Note may in some respects apply to standing to intervene, this Note does not attempt to identify the extent to which such is the case. See Erik Figlio, Note, Stacking the Deck Against “Purely Economic Interests”: Inequity and Intervention in Environmental Litigation, 35 GA. L. REV. 1219 (2001), for one perspective on intervenor standing in NEPA cases. 9. See infra notes 49–52 and accompanying text for a discussion of prudential standing. Note that standing is subject to constitutional limitations as well as prudential ones. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Constitutional standing is the set of features essential to a “case or controversy” within the meaning of Article III. See id. at 559–62; U.S. CONST. art. III, § 2. The various constitutional requirements present their own obstacles to would-be plaintiffs. See generally Lujan, 504 U.S. at 559–62; ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 2.5 (2d ed. 1997). These requirements are beyond the sc (...truncated)