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FOUNDATION v. WATKINS

April 29, 1992

FOUNDATION ON ECONOMIC TRENDS, et al., Plaintiffs,
v.
JAMES D. WATKINS, et al., Defendants.


REVERCOMB


The opinion of the court was delivered by: GEORGE H. REVERCOMB

This action is brought under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370a, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 500-706, against the Secretary of Energy, the Secretary of Agriculture, and the Secretary of the Interior. According to their First Amended Complaint for Declaratory and Injunctive Relief, filed May 20, 1991, *fn1" plaintiffs seek this Court "to declare unlawful certain actions of the defendants . . . in authorizing, carrying out, approving, funding, or participating in programs and actions that contribute to or ameliorate the 'greenhouse effect' without discussing and evaluating the impacts of those contributions in environmental documentation, review, and decision-making in conformity with the requirements of" NEPA. Specifically, plaintiffs have identified some 42 "actions and programs under the authority of the defendants that may contribute significantly to, or ameliorate, the greenhouse effect," for which defendants "have failed to consider (or have considered inadequately) under NEPA the impacts their activities and programs may have on the greenhouse effect, despite significant new information that continues to emerge on this subject." *fn2"

 In an earlier ruling denying defendants' Motion to Dismiss, this Court held that plaintiffs did not seek an advisory opinion, that the challenged actions were ripe for review, and that plaintiffs had standing under the concept of informational standing then recognized in this circuit. See Foundation on Economic Trends (FOET) v. Watkins, 731 F. Supp. 530 (D.D.C. 1990). Now before the Court is defendants' Motion for Summary Judgment, in which they renew their standing challenge, assert plaintiffs' failure to exhaust administrative remedies, and raise various other objections going to the merits of plaintiffs' claims with regard to specific agency actions. The parties have fully addressed these arguments in their briefs, as well as in oral argument at a hearing held December 10, 1992.

 Also before the Court are plaintiffs' Motion for Leave to File Second Amended Complaint, filed February 11, 1992, and defendants' Opposition thereto, containing a Motion for Partial Summary Judgment directed at the additional claims contained in the Second Amended Complaint. Both of these are now ripe.

 The Court has carefully weighed the arguments presented by the parties in their briefs and in oral argument, particularly on the question of plaintiffs' standing. Because the Court is now persuaded that plaintiffs lack standing, the Court will issue an Order granting defendants' Motion for Summary Judgment on that basis. Plaintiffs' Motion for Leave to File Second Amended Complaint will be denied, thus rendering defendants' Motion for Partial Summary Judgment moot.

 I. Plaintiffs' Lack of Standing

 As our court of appeals has made clear, litigants must meet both the constitutional requirements for standing and the requirements imposed by Congress in the APA in order to obtain judicial review of agency action under NEPA. See Foundation on Economic Trends v. Lyng, 943 F.2d 79, 82-83 (D.C. Cir. 1991) ("the Germplasm case"); City of Los Angeles v. National Highway Traffic Safety Administration, 912 F.2d 478, 483 (D.C. Cir. 1990). Under constitutional standing doctrine, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984) (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982)). When, as here, there is a challenge to federal agency compliance with NEPA, plaintiffs' claim of a right to judicial review is also governed by section 10(a) of the APA, which provides that

 [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.

 5 U.S.C. § 702. The Supreme Court has interpreted this provision to require that the person claiming a right to sue 1) "identify some 'agency action' that affects him in the specified fashion"; and 2) "establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 110 S. Ct. 3177, 3185, 3186, 111 L. Ed. 2d 695 (1990). "If a petitioner can establish that it has suffered an injury within the zone of interests, it will necessarily have satisfied the constitutional injury requirement as well." City of Los Angeles, 912 F.2d at 483. *fn3"

 The doctrine of standing has been well described as a "'complicated specialty of federal jurisdiction, the solution of whose problems is . . . more or less determined by the specific circumstances of individual situations.'" Germplasm, 943 F.2d at 82 (quoting United States ex rel. Chapman v. FPC, 345 U.S. 153, 156, 97 L. Ed. 918, 73 S. Ct. 609 (1953) (Frankfurter, J.)). Moreover, the Supreme Court has noted that "the concept of 'Art. III standing' has not been defined with complete consistency in all of the various cases decided by this Court which have discussed it." Valley Forge, 454 U.S. at 475. Nevertheless, the Supreme Court has repeatedly stressed that a showing of palpable and particularized injury on the part of the plaintiff is a sine qua non of standing in federal court. See, e.g., Allen v. Wright, 468 U.S. at 751 (citing cases); Valley Forge, 454 U.S. at 472 (same); Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975) ("The plaintiff . . . must allege a distinct and palpable injury to himself"); Sierra Club v. Morton, 405 U.S. 727, 740, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972) (Under the APA, the showing of adverse effect on the part of the plaintiff serves "as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome.") The purpose of this requirement is to ensure that the judicial power exercised by federal judges remains confined to the adjudication of particular "cases" and "controversies," as set forth in Article III, and not extended to the resolution of disputes by litigants with no more than an ideological interest in a problem, no matter how deeply that interest may be held. See Allen v. Wright, 468 U.S. at 754-56; United States v. Richardson, 418 U.S. 166, 176-80, 41 L. Ed. 2d 678, 94 S. Ct. 2940 (1974); Sierra Club v. Morton, 405 U.S. at 739; see also Scalia, "The Doctrine of Standing as an Essential Element of the Separation of Powers," 17 Suffolk L. Rev. 881 (1983).

  It is within this context that this Court must evaluate plaintiffs' claim of standing. That claim rests upon the assertion that injury to plaintiffs' information dissemination activities, caused by defendants' alleged failure to address or to address adequately under NEPA the effects of various federal actions on global warming, is distinct and palpable injury for standing purposes. In so invoking the concept of "informational standing" under NEPA, plaintiffs rely on a line of cases within this circuit going back to a footnote in a 1973 opinion authored by the late Judge Skelly Wright. See Scientists' Institute for Public Information, Inc. (SIPI) v. Atomic Energy Comm'n, 481 F.2d 1079, 1086-87 n.29 (D.C. Cir. 1973); see also Competitive Enterprise Inst. v. National Highway Traffic Safety Admin., 901 F.2d 107, 123 (D.C. Cir. 1990) (citing and discussing the dicta in SIPI); National Wildlife Fed'n v. Hodel, 839 F.2d 694, 712 (D.C. Cir. 1988) (same). These cases suggest that, where an organization asserts "a plausible link between the agency's action, the informational injury, and the organization's activities," and where the organization can "point to concrete ways in which their programmatic activities have been harmed" by an infringement on the "right to information on the environmental effects of government actions" created by NEPA, the organization's right to judicial review may be sustained on informational standing grounds. Competitive Enterprise Inst., 901 F.2d at 122-23. In the case at bar, plaintiffs -- the Foundation on Economic Trends, the Greenhouse Crisis Foundation, and author Jeremy Rifkin -- assert that their right to judicial review of defendants' alleged failure to comply with NEPA rests on just such allegations of injury: That defendants' failure to consider the effects on global warming of specific federal actions and programs under their authority has harmed plaintiffs' programmatic activities in disseminating information about the greenhouse effect to the public.

 Our court of appeals has recently reexamined the informational standing concept and found it wanting. See Germplasm, 943 F.2d at 82-85. In the Germplasm case, decided during the course of briefing on defendants' Motion for Summary Judgment before the Court today, the Foundation on Economic Trends and other individual and organizational plaintiffs sought to challenge the Department of Agriculature's ("USDA") failure to prepare an environmental impact statement ("EIS") with respect to what was described as the department's "germplasm preservation program." Id. at 80. The Germplasm plaintiffs rested their standing to sue on the basis of informational standing. Id. at 83. Although the court of appeals ultimately found that the plaintiffs lacked standing because they failed to challenge an "agency action" triggering the department's obligations under NEPA, the court also found that the claim of informational injury itself ran afoul of the Supreme Court's insistence that "'a mere interest in a problem,'" was insufficient to confer standing. Id. at 85 (quoting Sierra Club v. Morton, 405 U.S. at 739). As the court explained,

 "informational injury," in its broadest sense, exists day in and day out, whenever federal agencies are not creating information a member of the public would like to have. If such injury alone were sufficient, a prospective plaintiff could bestow standing upon itself in every case merely by requesting the agency to prepare the detailed statement NEPA contemplates, which in turn would prompt the agency to engage in "agency action" by failing to honor the request.

 Id. Thus, standing based on informational injury alone "would potentially eliminate any standing requirement in NEPA cases, save when an organization was foolish enough to allege that it wanted the information for reasons ...


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