Bennett v. Spear: revisiting the jurisprudence of constitutional standing
Below is the latest contribution of Liz Batres, proving once again that I am not the only lawyer captivated by the Endangered Species Act. This time, her SCOTUS summary is on Bennett v. Spear, 520 U.S. 154 (1997). For two interesting law review articles on the case, visit Sam Kalen, Standing on its Last Legs: Bennett v. Spear and the Past and Future of Standing in Environmental Cases, 13 J. Land Use & Envtl. L.1 (1997), and William W. Buzbee, Expanding the Zone, Tilting the Field: Zone of Interests and Article III Standing Analysis After Bennett v. Spear, 49 ADMIN. L. REV. 763 (1997). Otherwise...
Bennett v. Spear, 520 U.S. 154 (1997). This case is noteworthy for its unanimous holding allowing landowners and people opposing Endangered Species Act actions to assert claims against the government for "overenforcing" the ESA.
The FWS issued a biological opinion (BO) on the operation of the Klamath Irrigation Project and its impact on two endangered species of sucker fish. Id.at 1158-59. To avoid jeopardy to the species, the BO stated that the Project should have minimum water levels. Id. at 1159. Petitioners, irrigation districts and ranch operators, sued the FWS, alleging that the jeopardy determination and the minimum water level requirement “violated § 7 of the ESA, 16 U.S.C. §1536.” Id. at 1160; see also id. at 1168 (discussing § 1536 requirement that an agency use the best scientific data available, and the instant claim that available data shows no adverse impact of the Project on the species). Petitioners also claimed that imposing the minimum water level restrictions “constituted an implicit determination of critical habitat for the suckers, which violated § 4 of the ESA, 16 U.S.C. § 1533(b)(2) because it failed to take into consideration the designation’s economic impact.” Id. (“In essence, petitioners claim a competing interest in the water the Biological Opinion declare(d) necessary for the preservation of the suckers.”). Furthermore, the claims stated that the agency action was arbitrary, in violation of the APA. Id.
First, the Court addressed the issue the Ninth Circuit found dispositive: that petitioners lacked standing because their grievance was not within the “zone of interest” protected by the ESA’s citizen-suit provision. Id. at 1160-61. The zone of interest test is a prudential standing requirement, which can be negated by Congress. Id. at 1161. Relying on the wording of the citizen-suit provision that states “any person may commence a civil suit,” the Court found clear congressional intent to negate the zone of interest test. Id. at 1163. The Court then found that the broad “‘any person’ formulation applies to all the causes of action authorized by § 1540(g) (citizen-suit provision) . . . not only to actions against the Secretary asserting underenforcement under § 1533, but also to actions against the Secretary asserting overenforcement under § 1533.” Id.
Second, the Court considered the Government’s alternative arguments for affirming dismissal of the case. Id. Arguing that petitioners allege that the BO water restriction will reduce available irrigation water, as opposed to alleging “that petitioners will receive less water,” the Government contended that petitioners failed to meet the “injury in fact” standing element. Id. The Court, however, found that "(t)he complaint allege(d) the requisite injury in fact” because it was “easy to presume specific facts under which petitioners will be injured-for example, the . . . reduction pro rata among (Project) customers.” Id. at 1164. The Court similarly rejected Government’s contention that petitioners failed to satisfy the causation and redressability elements of standing. Id.
Third, the Court determined whether the ESA’s citizen-suit provision authorized judicial review of the claims. The relevant subsections of the provision provide that any person may commence a civil suit on his own behalf- "(A) to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or... (C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary." 16 U.S.C. § 1540(g)(1).
“Turning first to subsection (C): that it covers only violations of § 1533 is clear and unambiguous. Petitioners’ first and second claims, which assert that the Secretary has violated § 1536, are obviously not reviewable under this provision.” Id. at 1165. However, the third claim, alleging that the BO implicitly determined critical habitat without considering the economic impact, contrary to section 1533(b)(2), fell within subsection (C).
After concluding that the § 1536 claims were not reviewable under subsection (C), the Court considered whether “subsection (A), which authorizes injunctive actions against any person ‘who is alleged to be in violation’ of the ESA,” applies to the Secretary’s conduct in enforcing the ESA. Id. at 1166. Agreeing with the Government, the Court reasoned that subsection (A) “is a means by which private parties may enforce the substantive provisions of the ESA against regulated parties . . . but is not an alternative avenue for judicial review of the Secretary’s implementation of the statute.” Id. (“Viewed in the context of the entire statute, § 1540(g)(1)(A)’s reference to any ‘violation’ of the ESA cannot be interpreted to include the Secretary’s maladministration of the ESA.”) Thus, the claims were further not reviewable under subsection (A).
Next, the inquiry turned to “whether the() § 1536 claims may nonetheless be brought under the Administrative Procedure Act,” that allows that courts to set aside arbitrary agency action. Again, disagreeing with the Ninth Circuit, the Court stated that: "Whether a plaintiff’s interest is 'arguably . . . protected . . . by the statute' within the meaning of the zone-of-interests test is to be determined not by reference to the overall purpose of the Act in question (here, species preservation), but by reference to the particular provision of law upon which the plaintiff relies." Id. (omissions in original). The Bennett Court concluded that the requirement of § 1536 to “‘use the best scientific and commercial data available’ . . . serves to advance the ESA’s overall goal of species preservation . . . (and) avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives.” Id. at 1168. Accordingly, petitioners claim was held to be within the zone of interests protected by § 1536. Id.
Finally, the Court rejected Government’s argument that the claims were not reviewable under the APA because the BO was not final agency action. Id. Applying the two part finality test, the Court summarily held that the BO (1) marked the consummation of agency’s decisionmaking process, and (2) had “direct and appreciable legal consequences.” Id. at 1168-69. In sum, the Court reversed the dismissal of the complaint, finding it alleged sufficient facts
to meet the requirements of Article III standing, and none of the ESA claims (was) precluded by the zone-of-interests test. Petitioners’ § 1533 claim (was) reviewable under the ESA’s citizen-suit provision, and petitioner’s remaining claims (were) reviewable under the APA. Id. at 1169.