Daily Development for
Thursday, September 11, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ENDANGERED SPECIES ACT; STANDING; LANDOWNERS: Standing to sue under the Endangered Species Act (ESA) is not limited to environmentalists. Ranch operators and irrigation districts who brought an action challenging a Biological Opinion of the Fish and Wildlife Service have standing to sue under the ESA and the Administrative Procedure Act (APA) and meet Article III standing requirements.

Bennet v. Spear, 117 S.Ct. 1154 (1997).

Under the Endangered Species Act, any federal agency that is proposing to take an action that might adversely affect a threatened or endangered species must seek a Biological Opinion from the Fish and Wildlife Service. The Biological Opinion should explain how the proposed action will affect the species or its habitat and, if it finds that the action will "jeopardize" the species or its habitat, should outline "reasonable and prudent" steps that the agency should take to minimize or avoid such impacts.

In the present case, the Fish and Wildlife Service issued a Biological Opinion in which it concluded that a Bureau of Reclamation irrigation project might jeopardize the existence of two species of fish and recommended that the Bureau maintain minimum water levels in its lakes and reservoirs in order to avoid this result. Two irrigation districts and the operators of two ranches within these districts, who believed that their commercial interests would be harmed by the maintenance of minimum water levels, brought suit against the Fish and Wildlife Service and the Secretary of the Interior claiming that the Biological Opinion violated both the ESA and the APA's prohibition against "arbitrary" or "capricious" agency action.

The U.S. District Court for the District of Oregon dismissed these claims for lack of standing, and the 9th Circuit Court of Appeals affirmed. A unanimous Supreme Court, by Justice Scalia, reversed.

The Court held that the ESA's "citizen suit" provision, 16 U.S.C. 1540(g), is an "authorization of remarkable breadth" that applies not only to actions by environmentalists "asserting underenforcement [of the ESA] but also to actions against the Secretary asserting overenforcement." In particular, the citizen suit provision gives the irrigation districts and ranchers standing to claim that the Secretary of the Interior violated the ESA by failing to consider the economic impacts of the Biological Opinion.

The Court further held that the irrigation districts and ranchers can sue under the Administrative Procedure Act to challenge the manner in which the ESA was being implemented since their complaint fit within the "zone of interests" protected by the ESA. According to the Court, ESA , which requires that each agency "use the best scientific and commercial data available," is intended not only to ensure that the ESA is implemented wisely, but also "to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives." The irrigation districts' and ranchers' claim that the Biological Opinion would unnecessarily cause them economic harm fit within this statutory objective. They therefore had standing to bring a claim under the APA asserting that the Fish and Wildlife Service was implementing this statutory directive in an "arbitrary" and "capricious" manner. Finally, the Court held that petitioners' allegation that the reduction in the amount of available water for irrigation purposes would injure their economic interests satisfies Article III standing requirements since it asserts an injury that is "fairly traceable" to the Service's Biological Opinion and is "likely" to be redressed by a decision setting aside the Biological Opinion.

Reporter's Comment: While Bennet v. Spear seems, at first glance, to be a victory for landowners over environmentalists, its eventual impact may be more mixed. The case reads the Endangered Species Act's citizen suit provision very broadly. In so doing, the Supreme Court may have opened the door to greater standing for pro-environmental suits under the ESA and other environmental statutes that have similarly worded citizen suit provisions.

Editor's Comment: The editor concurs that standing decisions are always double edged swords. But the language of the opinion concerning the meaning of the charge in the ESA concerning use of scientific and commercial data - that the requirement is intended not only to ensure that the ESA is implemented wisely, but also "to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives," could be very helpful in future battles between landowners and EPA.

Environmental policy setting is not, as some environmentalists (and probably some developers) would have it, an "all or nothing," proposition. We are not in a society in which your either "for" the environment or "against" it. Clearly there are many and varied balances that can be struck in reaching a national consensus on these issues.

Litigation is the consensus seeker of last resort. Often the Congress "hides behind" vague language in balancing competing social views so that all the legislators can report back a victory to their supporters. This leaves the heavy lifting for the courts. Environmental legislation is rife with vague "compsomise" language that is difficult, if not impossible, to apply literally or even to comprehend. Litigation, therefore, becomes a necessary tool. If the Congress disagrees with a judicial interpretation of its policy, it always can attempt to restate its views more clearly.

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