The Nickel Report

Standing may seem like an arcane concept, but, as lawyers, we know that this term has special legal meaning—and that it affects whether our clients or our clients’ opponents can successfully bring a lawsuit. In the field of environmental law, understanding standing (a little alliteration) is no easy task. In a decision by the DC Circuit last week, the Sierra Club was reminded just how important standing can be when challenging, or more to the point attempting to challenge, environmental laws.

Standing Basics

In a nutshell, standing means whether a party—an individual, company, governmental entity or other organization—is able to bring a claim or otherwise participate in litigation before a court. The standing requirement stems from the US Constitution’s requirement that courts only deal with real “cases or controversies.” It has the benefit of ensuring courts are not bogged down with cases brought by the wrong person or at the wrong time so judicial resources are preserved for cases appropriately before the federal courts.

The Supreme Court has said that, to establish standing, you must show (a) an “injury in fact,” (b) causation (the injury alleged is “fairly traceable” to the action they seek to challenge), and (c) redressability (a remedy for the injury by a favorable decision of the court is “likely,” not just “speculative”). Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 180-81 (2000). In lay terms, you have to show that you’ve been harmed, that the action you’re challenging caused that harm, and that if the court decided in your favor, the harm would at least be lessened. The courts have made it easier for some litigants to establish standing. States, for example, are afforded “special solicitude” in light of their role as sovereigns. The most common “special rule” applies to organizations (like Sierra Club or industry trade groups), which can invoke “associational standing,” where a group can be deemed to have standing if any one of its members would have standing to bring the lawsuit in his or her own name.

Generally speaking, associational or organizational standing exists where a group demonstrates three things: (1) that any one of its members would have standing to sue on his or her (or its, where members are companies) own, (2) that the group seeks to protect interests germane to its purpose, and (3) that the claim asserted and the requested relief do not require participation by individual group members in the litigation. In environmental cases, the focus is often on the first prong and, within that, on whether an individual member can establish harm from the challenged action. It is not enough to say that you want a better environment—rather, to have standing, you must show that your injury is “concrete and particularized,” rather than felt by the general public, and “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Sierra Club v. EPA Decision

In last week’s Sierra Club case, the DC Circuit continued to home in on this jurisdictional gatekeeper in environmental law. A unanimous panel of the court—made up of Judges Griffith and Wilkins and Senior Judge Williams—rejected Sierra Club’s challenge to a US Environmental Protection Agency (EPA) rule modifying requirements for state air monitoring under the Clean Air Act. While Sierra Club raised several objections to the rule, each of which the court rejected, the panel’s decision closely scrutinized claims of standing and of associational standing in particular.

Under the Obama administration regulation at issue EPA offices across the country would be able to allow relaxation on a case-by-case basis of the sampling frequency for compliance with ambient air standards. Essentially, the relevant part of the rule allows that a given monitoring station, if approved, could reduce sampling frequency from the standard 1-in-3 days to 1-in-6 days, or seasonally. But such reprieves are not automatic. Instead, relaxing the frequency is contingent on several conditions being met: a state must request reduced frequency; the regional EPA office must conduct a case-by-case analysis of certain factors; and a determination must be made that the reduction, if granted, will not compromise data necessary to implement the ambient air quality program. Notwithstanding these procedural safeguards, Sierra Club argued that the provision “creates an increased risk” that monitoring will not detect excess pollution.

The DC Circuit has long recognized that an increased risk of harm can constitute an injury-in-fact for standing purposes in environmental cases if it is “substantially probable.” Florida Audubon Society v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996). Here, however, the DC Circuit was unconvinced that Sierra Club had established such risk. The court stated that Sierra Club’s standing claim was too speculative because the group had not demonstrated a “substantial probability” that one of its members would suffer injury absent judicial remedy. In its unsuccessful salvo, Sierra Club pointed to three monitors located near its members that were potentially eligible for a sampling frequency reduction, but it fell short. Sierra Club failed to show that the states where the monitors were located (Texas and Oregon) were likely to request monitoring frequency reductions at all, let alone for those specific monitors. Likewise, the court had “no reason to believe that an abrupt reversal,” increasing pollutant levels at those monitors, all located at fairly low-risk sites, was likely. The court thus dismissed Sierra Club’s claim for lack of standing.

The DC Circuit’s dismissal of Sierra Club’s claim does not mean that reduced sampling frequencies will be impervious to challenge by anyone—or even that Sierra Club itself could not challenge such reductions. A person can challenge a relaxation under the rule if and when it occurs, provided he or she can show harm (and causation and redressability). What this means as a practical matter is that the Sierra Club is not able to challenge EPA’s decision in a cost-efficient manner; it has to pay attention to where the rule is actually being applied and then challenge applications where it has a member who meets the standing requirements. Some may object to this effect of standing because it requires more work by the potential litigant to actually “monitor” (pun intended) for a specific action and then challenge it. The constitution is, at times, inconvenient to be sure, but it serves important purposes—here, to prevent courts from giving advisory opinions or otherwise wading into legal questions in improper contexts.

Recent DC Circuit Standing Trend

The DC Circuit has not just singled out environmental groups in requiring a showing of standing. In Masias v. EPA, the DC Circuit panel pressed industry intervenors on their standing claims at oral argument. No. 16-1314 (D.C. Cir. Oct. 19, 2018). Ultimately the court found that one group, an organization representing electric generators, did establish standing; the other, a public utility board, did not based on a failure to demonstrate material harm. A second DC Circuit case also rejected last year for lack of standing was an organization’s challenge to air toxics regulations for tile manufacturing because the trade group failed to put forth a member to say the rule would cause it imminent injury (part of the injury-in-fact inquiry under Lujan) since none of its members had facilities that were actually subject to the rule at the time. Tile Council of North America v. EPA, No 15-1496, consolidated with Nos. 15-1492, 15-1493, and 16-1179 under Sierra Club v. EPA, 895 F.3d 1 (D.C. Cir. 2018).

This latest decision rejecting Sierra Club’s standing adds to the recent spate of cases making sure that courts are hewing to constitutional requirements that they engage real cases and not issue “advisory opinions” by rejecting associational standing claims in Clean Air Act cases. Organizations on both sides of environmental issues are well advised to ensure they can demonstrate the critical elements of standing if they seek to challenge a national regulation. They should also consider the advantages of deferring review to situations where the application in a particular factual setting could actually enhance opportunities for success. In the end, lawyers may find themselves between a rock and a hard place given the 60-day statute of limitations for challenging final regulations embedded in the Clean Air Act. If you think your client does not have standing to sue now, you may get kicked out of court on standing grounds, but if you wait, you risk being deemed too late. Thus, a “loss” on standing may not actually be a loss at all, in that it may give you that extra time to challenge once a rule actually affects your client. The bottom line is that trade groups and coalitions contemplating challenging regulations (or even intervening on behalf of the government to defend them) should take care to identify members that are currently subject to a regulation and would be harmed by it. Otherwise they risk the ability to participate as a party in key cases.