Supreme Court News

by William Funk ¹

As this copy of the News goes to press, the biggest administrative law cases -- in the area of separation of powers -- are yet to be decided. They include both City of New York v. Clinton, the Line-Item Veto case, which was heard on an expedited basis as provided in the Line-Item Veto Act, and possibly an appeal by President Clinton of an adverse ruling on a claim of attorney-client privilege made by the U.S. District Court for the District of Columbia, which Independent Counsel Starr has asked the Supreme Court to hear directly before adjourning for the summer.

Court finds that Constitutional standing requirements foreclose a citizen suit for wholly past violations under the Emergency Planning and Community Right-to-Know Act

On the more mundane level, the Court continues what looks to be its equivalent of Sherman's march through Georgia with respect to the justiciability of environmental claims by environmental groups. In addition to the two Lujans -- Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) -- holding that environmental groups had failed to establish the requisite personal injury for standing, in the first case for lack of a sufficient geographical nexus and in the second for lack of a sufficient temporal nexus, the Court also has interpreted statutes restrictively to deny jurisdiction to environmental plaintiffs. For example, in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987), the Court interpreted the language of the Clean Water Act's citizen suit provision not to reach wholly past violations of the Act, as opposed to ongoing violations. In response to this decision, Congress in the Clean Air Act Amendments of 1990 amended the citizen suit provision in that act to make clear that citizens could sue for wholly past violations. The citizen suit provision in the Emergency Planning and Community Right-to-Know Act of 1986, enacted before the decision in Gwaltney, however, was ambiguous as to whether it authorized suits for wholly past violations of the reporting requirements imposed by the Act, and the issue split the circuits.

In the case that raised the issue to the Supreme Court in Steel Company v. Citizens for a Better Environment, 118 S.Ct. 1003 (1998), the company had failed to file the required EPCRKA reports for seven years. As a prerequisite to bringing a citizen suit case, plaintiffs must give alleged violators sixty days notice prior to suit, and during that period the company filed all the required reports. Thus, when the suit was filed, all the violations were wholly in the past.

In the Supreme Court the initial question was whether to decide the statutory issue first or to decide the standing question first. Six members of the Court agreed that the normal sequence would be to decide the jurisdictional and constitutional standing issue before deciding the "merits" question of whether the statutory cause of action reached wholly past violations. Of these six, three (Chief Justice Rehnquist and Justices Thomas and Scalia, the last the author of the Court's opinion) held that the Constitution mandates such a sequence, while the other three (Justices O'Connor, Kennedy, and Breyer) believed the sequence more flexible. The remaining three in an opinion by Justice Stevens believed that the reach of the citizen suit provision was itself jurisdictional, and because in their view the provision did not reach wholly past violations, it was unnecessary to decide whether if the statute had conferred jurisdiction over a wholly past violation, the statute would have been constitutional.

Because the majority believed it appropriate to address the standing issue first, the question was posed: Can plaintiffs under EPCRKA have standing to challenge a wholly past violation of company reporting requirements? The plaintiff environmental group alleged that it suffered informational injury by being deprived of timely information that it would have reported to its members. The Court sidestepped the hot potato of whether informational injury satisfies the constitutional standing requirement for a particularized injury, a question that has confounded the lower courts, concluding instead that the plaintiff's claim failed the third test for standing -- redressability. Under EPCRKA's citizen suit provision, as is the norm in environmental citizen suit statutes, plaintiffs can obtain declaratory and injunctive relief and civil penalties for violations. In the case at hand, because all the required reports had been filed before the lawsuit was filed, and there was no allegation of a continuing violation or an imminent future violation, neither declaratory nor injunctive relief was appropriate. Nor could they remedy plaintiff's past injury. Moreover, because civil penalties are paid to the Treasury of the United States, not to the successful plaintiff, were plaintiff successful in obtaining civil penalties for the company's past violations, those penalties would do nothing to remedy (or compensate for) its injury. Hence, if plaintiff were to succeed on the merits, its alleged injury caused by the past violations would not be redressed by any of the relief authorized by EPCRKA's citizen suit provision.

The United States as amicus curiae on the side of the environmental plaintiffs argued that when a person ceases illegal activity because of an imminent lawsuit, there should be a presumption of future violation, giving rise to a claim of future injury, not just past injury. The Court acknowledged that a presumption of continued violation does exist to protect a case from dismissal on the ground of mootness, if a defendant ceases the illegal action after the suit is filed. It would, however, be "an immense and unacceptable stretch to call the presumption into service as a substitute for the allegation of present or threatened injury upon which initial standing must be based," the Court concluded.

The practical effect of the decision is not yet clear. On the one hand, it would seem that any EPCRKA defendant receiving a 60-day notice letter could file the necessary reports before the complaint was filed and avoid suit on the strength of this case. This would effectively eviscerate the EPCRKA citizen suit provision. On the other hand, it is not clear what facts would be required to justify a claim of a continuing violation or an imminent future violation, even when all past required reports had been filed. That is, while the Court clearly ruled out a conclusive presumption of a continuing violation when a defendant filed the necessary reports before suit was filed, it did not address what probative weight to assign to a history of past violations, cured only in response to citizen notice letters, in a plaintiff's claim of a continuing or future violation. What the case does reflect is the unrelenting hostility of the Court to citizen suits as an adjunct or supplement to government enforcement, a hostility that was express in Justice Scalia's opinion for the Court in Lujan v. Defenders of Wildlife, in which he wrote that under the Constitution the responsibility for the enforcement of the laws rested in the Executive Branch and the availability of judicial recourse for individuals was limited to where they were injured by unlawful action that could be redressed by a favorable court decision.

Environmentalists' challenge to Forest Plan is not ripe for judicial review

In Ohio Forestry Ass'n v. Sierra Club, -- S.Ct. -- (1998), the Court unanimously again ruled against environmentalists, this time on the grounds of ripeness in an opinion by Justice Breyer. The National Forest Management Act requires the Forest Service to adopt plans for each of the National Forests, taking both commercial and environmental goals into account. These plans then guide the actual resource management activities that take place in the forests, from use of the land for recreation and habitat to use of the land for timber and range. When the Service adopted a plan for the Wayne National Forest in Ohio, the Sierra Club sued, alleging that the plan permitted too much logging generally and too much clear cutting in particular, violating NFMA. The government defended on the grounds that the suit was not yet ripe. The Court agreed. Its analysis began with Abbott Laboratories v. Gardner, 387 U.S. 136, and its general test whether the issues are fit for judicial decision and the balance of hardship to the parties of withholding review at the present time. It distilled this general test into three questions in the particular case: whether delayed review would cause hardship to the plaintiffs, whether judicial intervention would inappropriately interfere with further administrative action, and whether the case would benefit from further factual development. The answer to each of these counseled a lack of ripeness. First, before any actual logging could take place, the Forest Service would have to "focus upon a particular site, propose a specific harvesting method, prepare an environmental review, permit the public an opportunity to be heard, and (if challenged) justify the proposal in court." At that time, if the Forest Plan "plays a causal role with respect to the future, then-imminent harm from logging," the Sierra Club could challenge the lawfulness of the Plan as part of a challenge to the specific logging proposal. In other words, no actual harm from logging could take place before the Sierra Club had an opportunity to challenge the Plan, so it would be premature to consider the Plan now. Second, immediate review would interfere with the ability of the agency to refine the Plan itself either through revision of the Plan, perhaps in light of a proposed site specific application, or through application to site specific proposals themselves. Third, review now would of necessity be abstract, considering the Plan as a whole without any actual activities on the ground to give the dispute concrete focus. Finally, the Court mentioned that Congress had not provided for pre-implementation judicial review of Forest Plans, as it has in a number of environmental statutes. As much as the case may have been a blow to environmentalists, Justice Breyer managed to sneak in two major dicta bound to aid environmentalists in the future. First, he noted, the challenge to the Plan here was limited to an allegation of injury resulting from too much logging, which logging could not occur until after some future Forest Service action which environmentalists could challenge. This was to be distinguished, he said, from a challenge under the National Environmental Policy Act alleging an agency had failed to prepare an adequate Environmental Impact Statement. "NEPA, unlike the NFMA, simply guarantees a particular procedure, not a particular result. Hence a person with standing who is injured by a failure to comply with NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper." Second, the challenge here was only to Plan's proposal for logging, which did not have an immediate impact on plaintiffs. Had the challenge been to the Plan's immediate effects, such as opening certain trails to motorcycles or the failure to close certain roads or build additional trails, however, even the government conceded the challenge would have been ripe. While environmentalists may have lost the particular case, as they did in Sierra Club v. Morton, 405 U.S. 727 (1972), even as it created the justification for environmental standing, they may have won as much as they lost, in the explicit acceptance that different types of challenges to Forest Plans would satisfy ripeness requirements.

1. Professor of Law, Lewis & Clark Law School; Editor-in-Chief, Administrative & Regulatory Law News.