February 27, 2013

PLF urges U.S. Supreme Court to take important NEPA case

By M. Reed Hopper Senior Attorney

PLF filed an amicus brief today in support of a petition for review in the U.S. Supreme Court to address an important issue that has been left unresolved for decades–whether those representing economic interests have standing to enforce the National Environmental Policy Act (NEPA).

One has to have “standing” to sue in court.  The constitutional minimum requires the plaintiff to have suffered a unique and actual injury that can be redressed by the suit.  This limitation, known as Article III standing, was intended to limit the number of suits that are filed in federal court to those who have a legitimate grievance.  But the U.S. Supreme Court put a spin on this requirement in 1970 with Association of Data Processing Service Organizations v. Camp.  According to the Supreme Court, a plaintiff must also fall within the “zone of interests” protected by the statute that forms the basis for the suit.  Generally, this means that plaintiffs must demonstrate they are denied a benefit that Congress intended to confer or protect.  But this “zone of interests” test has created serious problems.

First, the Supreme Court itself has been inconsistent in applying the “zone of interests” test.  Second, the lower courts are in disarray as to how to apply the test.  And, third, the “zone of interests” test has ironically been used as means of denying redress to those most affected by violations of the underlying law.  NEPA cases are the most telling.

Under the National Environmental Policy Act, federal projects that significantly affect the “quality of the human environment” must undergo a detailed environmental review in the form of an Environmental Impact Statement (EIS).  In the recent case of American Independence Mines v. Department of Agriculture, the U.S. Forest Service issued an admittedly faulty EIS, misrepresenting which roads and trails in the Payette National Forest are open to public access.  This misrepresentation skewed the impacts analysis and had the effect of denying American Mines access to roads previously used for its mining operations.  When American Mines sued the Forest Service for violating NEPA, the federal district court and Ninth Circuit Court of Appeals dismissed the case for lack of standing.  These courts erroneously held that NEPA was intended to protect only environmental interests and not economic interests.  Although the Ninth Circuit acknowledged that American Mines was “committed to environmental studies and mitigation activities,” the court cynically concluded that American Mines was “motivated” only by economic interests and, therefore, fell outside NEPA’s “zone of interests.”

The obvious problem with this test is that it calls for a subjective evaluation of the plaintiffs’ motives and is based on the patently absurd notion that a business cannot have legitimate environmental concerns while environmental groups cannot be motivated by economic interests.  The practical effect is that in the Ninth Circuit only environmental groups have standing to raise a NEPA challenge while industry groups are shut out of court, regardless of how great an injury they suffer as a result of illegal governmental action.

American Mines has petitioned the U.S. Supreme Court to overturn the Ninth Circuit decision.  Today, PLF filed an amicus brief in support of the petition, arguing, among other things, that this animosity toward economic interests is biased and unworkable, and contrary to law.

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