A recent decision by the United States Supreme Court acknowledges that the Endangered Species Act ("ESA"), 16 U.S.C. 1531 et seq., has some purposes in addition to protecting endangered species. The decision suggests that, at least for some purposes, the Court will interpret environmental statutes to protect both economic and environmental interests. Together with other recent decisions, this case may reflect a judicial attitude that is less willing than before to rely on the remedial purposes of environmental legislation to justify decisions which favor environmental interests.
Bennett v. Spear, 65 Law Week 4201 (March 18, 1997) arose when the United States Fish and Wildlife Service advised the United States Bureau of Reclamation ("Bureau") that it would be necessary to maintain minimum water levels in two lakes in northern California in order to protect the Lost River sucker and the shortnose sucker, two species of fish which had been listed as endangered under the ESA. The Bureau replied that it would maintain minimum lake levels, as requested. Two irrigation districts and two ranchers, who believed that the decision would reduce the amount of water available to meet their needs, sued the Bureau under the citizen suit provision of the ESA, 16 U.S.C. § 1540(g), which allows "any person" to seek injunctive relief against any person in violation of any provision of the ESA, or against the Secretary of Interior if he fails to perform any non-discretionary duty under ESA. The plaintiffs alleged that their economic and recreational interests would be adversely affected by the decision to maintain minimum lake levels.
The Department of Justice successfully moved the district court to dismiss the action on grounds that the plaintiffs had no standing to seek an injunction under the citizen suit provision of the ESA, because their interests were purely economic, "an interest which conflicts with the interests protected by" the ESA. The district court held that economic and recreational interests were not even "arguably within the zone of interests" protected by the ESA, and dismissed the complaint.
The United States Court of Appeals for the Ninth Circuit affirmed the district court, holding that "only plaintiffs who allege an interest in the preservation of endangered species fall within the zone of interests protected by the ESA. Because the plaintiffs have not alleged such an interest in their complaint, they do not have standing." Bennett v. Plenert, 63 F.3d 915, 919 (9th Cir. 1995) (italics in original). The Ninth Circuit relied on two Supreme Court opinions, including Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), the famous snail darter case, to support its conclusion that "the overall purposes of the ESA are singularly devoted to the goal of insuring species preservation; they do not embrace the economic and recreational interests that underlie the plaintiffs' challenge." 63 F.3d at 920. The court of appeals acknowledged that the ESA requires the Fish and Wildlife Service to consider a variety of factors, including economic ones, in its decision making, but held that these requirements were not enough to "confer standing on every plaintiff who could conceivably claim that the failure to consider one of those factors adversely affected him." 63 F.3d at 921.
Justice Scalia, writing for a unanimous Supreme Court, analyzed the standing issue in two parts. The first part of his analysis focused on the citizen suit provision of the ESA, which authorizes "any person" to commence a civil action. Anyone familiar with Justice Scalia's literal approach to statutory interpretation will not be surprised that he held that "any person" means exactly that, and is not limited to persons who desire to vindicate the preservation of a species, but also includes those who wish to advance other causes. Unlike the Ninth Circuit, Justice Scalia did not consider the fact that the ESA is an environmental statute as a reason to limit the universe of parties eligible to commence citizen suits. On the contrary, he argued that the environmental protection subject matter of the ESA supports the view that Congress intended "to encourage enforcement by so-called 'private attorneys general.'" 65 Law Week at 4204. Justice Scalia did briefly acknowledge that these particular plaintiffs sought "to prevent application of environmental restrictions rather than to implement them." Id. Nonetheless, because he found "no textual basis" to limit the citizen suit provision "to environmentalists alone," Justice Scalia concluded that Congress intended to confer standing to commence a citizen suit under the ESA on any person, regardless of his or her motive for doing so.
The Court also analyzed the standing issue outside the context of the citizen suit provision of the ESA, because one of the plaintiffs' claims was based on the Administrative Procedure Act, instead of the citizen suit provision of the ESA. This analysis was based on the "substantive provisions of the ESA," rather than the citizen suit provision. Justice Scalia agreed with the courts below that "the overall purpose of the ESA is the preservation of endangered species"; however, he held that analysis of the standing issue must be determined not by the overall purpose of the statute in question, but instead "by reference to the particular provision of law upon which the plaintiff relies." 65 Law Week at 4207. In this case, the plaintiffs relied on 16 U.S.C. § 1536(a)(2), which requires the government to "use the best scientific and commercial data available" in making decisions. Justice Scalia held that it was "readily apparent that another objective [of the ESA in addition to species preservation] . . . is to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives." 65 Law Week at 4207. After thus finding that the ESA has both economic and environmental objectives, he concluded that the economic interests of the plaintiffs were within the "zone of interests" protected by the ESA, so that they have standing to contest the decision to maintain minimum lake levels.
The significance of this decision is debatable. Perhaps the plaintiffs won nothing more than an opportunity to present their substantive arguments to the district court, where they may face an uphill battle. On the other hand, this case may indicate that courts are becoming more even-handed in their interpretation of environmental statutes, and feel less need to write decisions which assure an outcome which is environmentally "desirable." In the past, some courts have cited the "remedial purposes" of environmental legislation almost as a substitute for analysis of other aids to statutory construction. Smith Land and Improvement Corp. v. Celotex Corp., 851 F.2d 86, 92 (3rd Cir. 1988). U.S. v. R.W. Meyer, Inc., 889 F.2d 1497, 1503 (6th Cir. 1989). In the last few years, however, courts have been less willing to adopt "liberal" constructions to achieve "remedial" purposes, and have demonstrated a more even-handed approach to interpreting environmental statutes. South Florida Water Management District v. Montalvo, 84 F.3d 402, 409 (11th Cir. 1996). United States v. Cordova Chemical Co., 59 F.3d 584 (6th Cir. 1995), opinion vacated, 67 F.3d 586 (6th Cir. 1995). United States v. USX Corp., 68 F.3d 811, 822 (3rd. Cir. 1995). The Supreme Court's decision in Bennett v. Spear reinforces this trend.
This article was written by Christopher J. Dunsky, a partner in our Environmental Department, and previously appeared in the July 21, 1997 edition of the Michigan Lawyers Weekly.