NEPA. Moreover, to the extent that the Andrus proposals evolved from the Morton proposals, and do not have "any broader implications or impacts" than the earlier proposals, which proposals accompanied by Final EIS's are already before Congress, raise serious questions to plaintiff's likelihood of ultimate success.
II. STANDING TO SUE.
The implications of this action extend beyond questions of standing, into other "facets of the broader concept of justiciability" such as the political question doctrine and the ripeness doctrine. See Harrington v. Bush, 180 U.S. App. D.C. 45, 553 F.2d 190, 194 n.6 (1977). The absence of standing here, however, renders consideration of the latter doctrines unnecessary.
In the words of Justice Powell's deceptively simple formulation, "when a plaintiff's standing is brought into issue, the relevant inquiry is whether . . . the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1975). In Harrington v. Bush, the District of Columbia Circuit has set forth four separate inquiries distilled from Supreme Court articulations of the standing doctrine. 553 F.2d at 205 n.68.
The first is the existence of the "irreducible constitutional minimum" of "injury in fact," the absence of which obviates consideration of the others. Second, the interests asserted by the plaintiff must fall "arguably within the zone of interests" protected by the statute. See Association of Data Processing Servs. Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). Third, the injury asserted must be causally related to the allegedly illegal action, Simon, supra at 41-42; Linda R. S. v. Richard D., 410 U.S. 614, 617, 35 L. Ed. 2d 536, 93 S. Ct. 1146 (1973). Fourth, the injury must be "likely to be redressed by a favorable decision," Simon, supra at 38, in that the action's "outcome will demonstrably cause him to win or lose in some measure." Harrington, supra 553 F.2d at 206.
1. Injury in Fact. Plaintiff's allegations disclose two discrete sources of interest for purposes of standing to sue. The first arises out of the Chamber's own "long-standing commitment to the conservation of our Nation's natural resources and the responsible development of these resources . . ." Affidavit of William G. Van Meter, para. 2. The second stems from the interests, economic and otherwise, of individual Chamber members in the status of the lands encompassed within the Andrus proposals. Each kind of interest is cognizable for purposes of determining standing under NEPA: an organization may have standing to sue in representation of its members, based on injury to one or more of them, Warth v. Seldin, 422 U.S. 490, 511, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975); Sierra Club v. Morton, 405 U.S. 727, 739, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972), and the interests infringed may be environmental and aesthetic as well as economic. United States v. SCRAP, 412 U.S. 669, 686, 93 S. Ct. 2405, 37 L. Ed. 2d 254; Sierra Club v. Morton, supra at 734. Moreover, even if the Chamber or its members were motivated in substantial part by economic self-interest, this would not necessarily preclude their asserting standing under NEPA. National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir. 1971).
That plaintiff's interests are cognizable generally under NEPA, however, does not compel the determination that it has sustained an injury in fact sufficient to maintain this action. Only if the Department's transmittal of the Andrus proposals to Congress has inflicted the requisite injury in fact may the plaintiff surmount this initial, constitutional hurdle in the way of its standing to sue. Thus, the issue at this point devolves on the nature of the injury in fact required under NEPA: May the injury derive solely from the submission of legislative proposals without an adequate EIS, and the concomitant denial of participation in the process of compiling an EIS, or must it comprise a more immediate, less speculative threat to the interests of the plaintiff? Plaintiff has urged the former construction, quoting the District of Columbia Circuit: "The harm against which NEPA's impact statement requirement was directed was not solely or even primarily adverse consequences to the environment; such consequences may ensue despite the fullest compliance. . . . Thus, the harm with which courts must be concerned in NEPA cases is not, strictly speaking, harm to the environment, but rather the failure of decision-makers to take environmental factors into account in the way that NEPA mandates." Jones v. District of Columbia Redevelopment Land Agency, 499 F.2d 502, 512, 162 U.S. App. D.C. 366, 376 (1974). The language quoted, however, bears not upon standing because it appears to have been conceded that residents of an area covered by a proposed urban renewal plan had standing to sue. Rather the case turns upon the propriety of injunctive relief against four neighborhood redevelopment programs which, though fully approved, had not actually been implemented when the District Court denied the injunctive relief on grounds of lack of imminence. Id. at 506-07, 162 U.S. App. D.C. at 370-71. The issue before the Court of Appeals was solely whether a project which had received all necessary legislative and administrative approval need be "imminent" in terms of physical implementation before preliminary injunctive relief was appropriate. Id. at 512, 162 U.S. App. D.C. at 376.
The facts underlying the present litigation make it clearly distinguishable. The injury in fact which plaintiff asserts, in the last analysis, is that its members would be adversely affected in their access to the forest, agricultural and mineral (including oil and gas) resources of Alaska if the Congress should enact the Andrus proposals into law. Assuming for the moment that Interior's failure to prepare an updated or supplemental EIS deprives interested parties of the opportunity to participate in the decision-making process and of a perspective on the factors which entered into the Secretary's decision, such deprivation by itself does not confer standing to sue on parties so deprived. This is because the Andrus proposals are in the lap of Congress. Their effect on the contents of any subsequent legislation and the date of the ultimate enactment of such legislation are speculative to say the least. In such a context, plaintiff has failed to allege specific injury in fact which in the words of the Supreme Court in Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962) manifest "such a personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues."
The decision most clearly analogous to the matter at hand is Wingfield v. OMB, in which Judge Gesell recently held that section 102(2)(C) of NEPA "was not intended to create a right of action in a private party to claim injury in some fashion from the ongoing legislative process." No. 77-489, 9 ERC 1961, 1962 (D.D.C. Apr. 4, 1977). The plaintiff, owner of property on which surface and underground mining operations were in progress, sought to enjoin Executive agencies from transmitting to Congress reports and recommendations on pending federal mining legislation. Id. Plaintiff distinguishes Wingfield on the ground that the departmental proposals in that action were far less sweeping, and worked much less radical a transformation of the pending bills than the Andrus proposals are alleged to do. Even if the difference between the two sets of proposals were as great as plaintiff claims, the determinative principles of Wingfield remain fully applicable:
"Plaintiff's economic interest in these legislative developments is highly speculative inasmuch as the legislation is still in the formative stage; and there is no indication of what the effect, if any, will be upon his affairs in the event some legislation of some kind is enacted.
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