Of Counsel Norman Dupont Published in ABA Section of Environment, Energy & Resources’ premier newsletter, Natural Resources & Environment

Asymmetrical Standing: When Greenbacks Outvalue Green Trees (or Not) by Norman A. Dupont and Alec Goos.

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To describe those rights and interests as personal, and to intimate that they are in some unspecified fashion to be differentiated from those of the general public, reduces constitutional standing to a word game played by secret rules. —Flast v. Cohen, 392 U.S. 83, 129 (Harlan, J., dissenting)

Much like a “word game played by secret rules,” the U.S. Supreme Court’s treatment of environmental organizations’ standing to challenge federal regulations is akin to a chameleon of changing colors. The Court’s vacillation, however, has a decidedly adverse overall treatment for those claiming infringement of environmental rights. This overall skepticism toward environmental and aesthetic values contrasts with the “monetary loss = injury in fact” standard that the Court uses to review claims that corporations or states bring. This asymmetrical approach has serious potential implications for the future of environmental and energy regulations.

Green Advocates Have Significant Standing Barriers
Some 50 years ago, in Sierra Club v. Morton, the Supreme Court held that the Sierra Club lacked constitutional standing to challenge a ski resort in an environmentally sensitive area, holding that the party seeking review (there, the Sierra Club) must “be himself among the injured.” 405 U.S. 727, 734–35 (1972). Then, 18 years later, the Court erected even more stringent barriers to environmental standing in Justice Scalia’s 5-4 majority opinion in Lujan v. National Wildlife Federation, holding that individuals who did not directly see the increased mining in affected wilderness areas lacked standing. 497 U.S. 871, 886, 891 (1990).

In 1992, in the now famous Lujan v. Defenders of Wildlife case, the Court again focused on the environmentalist plaintiff’s standing. The case involved environmental advocates challenging a regulation issued by the Interior Department under the Endangered Species Act (ESA) stating that section 7 consultation did not apply to federal agencies acting overseas. In an opinion again authored by Justice Scalia, the Court set forth a constitutional three-part test for evaluating standing. That test requires that a plaintiff establish that they “suffered an injury in fact,” there was a causal connection between the injury and the conduct complained of, and the injury likely would be
“redressed by a favorable decision.” 504 U.S. 555, 560 (1992). The fact that organizational members suing had visited and planned to continue to visit foreign countries (Egypt and Sri Lanka) with endangered species made no difference—for the Court, the mere “speculation” in affidavits that those individuals might return again did not constitute “injury in fact.” Id. at 567.

Consequently, Supreme Court precedent sets a demanding standard for standing to sue by environmental organizations: For an environmental entity to challenge a governmental regulation in its representational capacity, it must show that individuals (not the organization per se) have incurred concrete “injury in fact,” so even if an organization’s interests are harmed by a decision, an individual of that organization must still show that they have suffered an “injury in fact.”

The Assumption of Standing for Any Economic Injury
Compare the standard applied to environmental organizations to the Supreme Court’s treatment of corporate entities claiming monetary injury, which appears to be a standard of per se acceptance of that claim as a basis for standing. See TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021) (stating that “[i]f a defendant has caused physical or monetary injury to the plaintiff, the plaintiff has suffered a concrete injury in fact under Article III”).

Indeed, the Supreme Court, at least in cases evaluating the standing of states, has extended this solicitude for monetary damages even to non-suing parties that are related to a state. In 2023, the Court found standing based on monetary injury to a state-created nonprofit student loan processing entity, the Missouri Higher Education Loan Authority, even though that entity was not suing as part of a suit brought against a presidential order forgiving certain student loans. For the majority, the money “lost” to that separate agency organized under the Missouri laws by virtue of fewer processing fees (given fewer outstanding student loans) was sufficient “injury in fact.” Biden v. Nebraska, 143 S. Ct. 2235, 2365–66 (2023). Thus, an indirect monetary “injury” to a state-created subsidiary, even a nonprofit subsidiary, was sufficient for the injury-in-fact standing requirement.

This type of judicial consideration for the rights of corporate owners as to intangible values not directly impacted by the federal regulation at issue is itself dramatic.

More than just solicitude to corporate economic losses, the Supreme Court in recent decisions has extended standing to include consideration of intangible values such as corporate owners’ religious beliefs. This concern for a for-profit corporation’s ostensible religious sensitivity to a government regulation was evident in the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc. 573 U.S. 682, 736 (2014). There, the Court found not that the corporation as a whole, but rather the ultimate owners of the corporations—the Greens (as to Hobby Lobby and Mardel) and the Hahns (as to Conestoga Wood Specialties)—had “sincere Christian beliefs” that would be impinged by the compelled provision of contraceptives at no cost to employees as part of a federally mandated health insurance program. Id. at 684. The Court majority sidestepped the issue of standing, apparently finding that the congressional authorization of a claim under the Religious Freedom Restoration Act and the Establishment Clause of the First Amendment sufficiently granted these individual corporate owners standing to sue. Although not formally couched as such, the Department of Health and Human Services (HHS) clearly made an argument that the plaintiffs lacked standing. The Court majority phrased it as: “According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannot be heard because the regulations, at least as a formal matter, apply only to the companies and not to the owners as individuals.” Id. at 705. The Court majority rejected this argument, holding that it could have “dramatic consequences.” Id. 

This type of judicial consideration for the rights of corporate owners as to intangible values not directly impacted by the federal regulation at issue is itself dramatic. As Justice Harlan observed long ago with respect to another case of standing under the Establishment Clause for taxpayers: “[A]ny doctrine of standing premised upon the generality or relative importance of a constitutional command would . . . very substantially increase the number of situations in which individual citizens could present for adjudication ‘generalized grievances about the conduct of government.’” Flast v. Cohen, 392 U.S. 83, 129 n.18 (1968) (Harlan, J., dissenting).

The lack of symmetry is clear: If it’s a claim to an environmental right asserted by an environmental group, such as enjoyment of an area or endangered species, then Lujan and its progeny impose rigorous limits on standing. If, on the other hand, it’s a state or a few corporate owners asserting challenges to regulations touching on any claimed constitutional freedom of religion or claim of “statutory overreach,” then, under Nebraska and Burwell, the standing gates are open and wide.

Change in Standing Jurisprudence?
The Supreme Court appears to have modified its approach to standing in recent terms, signaling there might be a change in how the Court addresses standing in the future, a tightening of standing requirements for states, and a possible expansion for environmental litigants. We examine a few recent Supreme Court cases and several recent lower court decisions as to this possible trend.

In Massachusetts v. EPA, the Supreme Court suggested that it gave “special solicitude” to states in their challenges because of respect for state sovereignty. 549 U.S. 497, 520 (2007). Yet, the Supreme Court appeared to curtail this principle in United States v. Texas. 599 U.S. 670 (2023). In that case, Texas and Louisiana attempted to challenge the Biden administration’s promulgation of “Guidelines for the Enforcement of Civil Immigration Law,” which focused on the arrest of noncitizens who were suspected terrorists or had unlawfully entered the country recently.

The Supreme Court showed no solicitude for Texas’s and Louisiana’s arguments in United States v. Texas, concluding that the Court could not redress their prospective harm. The Supreme Court generally agreed that “[m]onetary costs are of course an injury,” but it disagreed as to whether this type of suit satisfied the “redressability” element of standing. Referring to its previous precedent, the Court held Texas and Louisiana lacked standing and maintained that a plaintiff must show that the Court can ultimately do something about the supposed injury. There was also a significant separation of powers problem with the states’ argument: “[T]this Court has declared that the Executive Branch also retains discretion over whether to remove a noncitizen from the United States.” Id. at 679. Texas and Louisiana, in effect, are trying to “mandate additional prosecutions against other possible defendants.” Id. at 681. Contrary to its holding in Massachusetts v. EPA, the Court to be looking at burdens on the states with a lot more skepticism.

Whether the Supreme Court’s strict approach to the redressability element of standing will continue is an open question given the Court’s grant of certiorari in Diamond Alternative Energy, L.P. v. EPA, No. 24-07. In that case, a number of states and alternative energy producers (corn and other agricultural fuels) challenged EPA’s determination to grant California a “waiver” under the CAA to enforce California’s own vehicle emissions standards. Other states, if they elect, may adopt California’s standards for their own. Given that many automobile manufacturers are unlikely to set up two separate production lines—one for California and similar states and one for everyone else—the renewable energy manufacturers and certain states have argued that EPA’s allowance to California effectively coerces the auto manufacturers to adopt higher-emissions standards and favor electronic vehicles. Thus, they argue that the “coercive effect” of EPA’s grant to California will ultimately produce lower demand for alternative liquid biofuels and also result in lower gasoline sales taxes to protesting states. 

The D.C. Circuit held that the fuel manufacturers’ claim lacks redressability, a necessary element in standing. The court of appeals reasoned that: 

The difficulty for Fuel and State Petitioners is that their claimed injuries “hinge[ ] on” the actions of third parties— the automobile manufacturers who are subject to the waiver. Chamber of Com. [of U.S. v. EPA], 642 F.3d [192,] 201 [(D.C. Cir. 2011)]. Redressability, too, “hinge[s] on the response of ” those same automobile manufacturers. Lujan [v. Defs. of Wildlife], 504 U.S. [555,] 562, 112 S. Ct. 2130 [(1992)]. Both groups of Petitioners’ injuries would be redressed only if automobile manufacturers responded to vacatur of the waiver by producing and selling fewer non-conventional vehicles or by altering the prices of their vehicles such that fewer non-conventional vehicles—and more conventional vehicles—were sold.

Ohio v. EPA, 98 F.4th 288, 302 (D.C. Cir. 2024), cert. granted in part sub nom. Diamond Alternative Energy L.P. v. EPA (Dec. 13, 2024). The court of appeals concluded that “[t]he record evidence provides no basis for us to conclude that manufacturers would, in fact, change course with respect to the relevant model years if this Court were to vacate the waiver.” Id. 

The new administration’s acting solicitor general filed a motion to hold further pleadings in abeyance pending a review of the entire waiver issue by the newly appointed EPA administrator. The Supreme Court denied that motion on February 6, 2025, and will now review this key issue of redressability in a decision expected to be issued after publication of this article.

A More Expansive Approach for Environmental Litigants?
There have been some rumblings in the lower courts about a more expansive approach for environmental litigants. For example, in 2022, the Center for Biological Diversity (CBD) challenged the U.S. Fish and Wildlife Service’s grant of import permits for leopards, which are subject to trade restrictions under the Convention
on International Trade in Endangered Species (CITES). Ctr. for Biological Diversity v. Bernhardt, 592 F. Supp. 3d 845, 849–50 (D. Ariz. 2022). Safari Club, a hunting advocates group, intervened and challenged CBD’s Article III standing. Id. at 850. Members of CBD submitted affidavits that demonstrated “they view, enjoy, study and photograph leopards in the countries and the same areas where leopards have been taken . . . [in] support [of] their allegations that import permits threaten the leopards by increasing killings . . . [and thus] their ability to enjoy and view leopards would thereby be directly affected by the authorization of import permits.” Id. at 851. The court found that CBD showed enough evidence to show an injury in fact.

The district court also found, after a discussion of the state doctrine and geographical nexus, that CBD met the causation and redressability requirements for standing. The district court focused on the evidence that many hunters will not engage in a trophy hunt if their import permit has not been granted. Therefore, the “Plaintiffs have plausibly alleged that the denial of leopard trophy imports would result in less leopard hunting despite the existing quotas and management plans.” Id. at 855. 

Here, the district court appears to treat the environmental litigants like economic litigants. There is a quantifiable connection between the permits and the denial of said permits. This connection was not too attenuated. Though the plaintiffs themselves did not do any hunting, their interest in photographing overcame the presumption against them.

Whether the Supreme Court’s strict approach to the redressability element of standing will continue is an open question given the Court’s grant of certiorari in Diamond Alternative Energy, L.P. v. EPA.

In another case, a private citizen and Nantucket Residents Against Turbines challenged an offshore wind project under the ESA and National Environmental Policy Act (NEPA), raising concerns for the endangered right whale species and air quality. Nantucket Residents Against Wind Turbines v. U.S. Bureau of Ocean Energy Mgmt., 675 F. Supp. 3d. 28, 35 (D. Mass. 2023). There was no dispute for any of the claims regarding causation and redressability; thus, the district court’s analysis focused solely on injury in fact.

As to the ESA claims, plaintiffs advanced three theories to show injury in fact. Id. at 48–49. First, the residents argued they had strong ties to the area and its ecosystem, but the district court found that was not sufficient. The second theory was the potential ecological grief plaintiffs would suffer because of this project, which the court found was far too attenuated to satisfy injury in fact. The third and final theory was that plaintiffs wanted to see the right whales and had concrete plans to see them. The court stated that the fact that they lived on the island, in the vicinity of the whales, and adequately demonstrated they were going to see them in the near future met the injury-in-fact requirement. The court focused on plaintiffs’ proximity to the area to support the notion they would visit soon, distinguishing this theory from the fact that plaintiffs had strong ties to the area.

Turning to NEPA, the plaintiffs demonstrated a particularized interest in the right whales, which is related to the NEPA review. Id. at 50–51. Consequently, they had standing as to the first NEPA claim. However, the plaintiffs failed on the air quality standards. But they failed to demonstrate even a marginal increase in risk to their health. Implicit in this decision is that an environmental litigant could succeed in establishing standing if they could demonstrate a connection between air quality and their health.

The third district court case involves the Narragansett Indian Tribe and their suit against the Federal Highway Administration (FHWA) related to a bridge project. Narragansett Indian Tribe v. Bhatt, 2024 WL 3509491, at *1 (D.D.C. July 23, 2024). This situation is different from the previous two cases for several reasons. Most notably, the Tribe’s claim under the National Historic Preservation Act (NHPA) raises different standing hurdles for environmental plaintiffs. The NHPA “requires that federal agencies ‘take into account’ the preservation of historic sites when implementing federal projects.” Id. Here, FHWA found its bridge project was going to impact historic sites under the NHPA. Because of this impact, the agency adopted a “programmatic agreement” that required Rhode Island to transfer several properties to the Tribe. Id. at *3. The agency eventually terminated the original programmatic agreement and attempted to replace it with an agreement with terms unfavorable to the Tribe, including not transferring the subject properties to the Tribe.

The U.S. District Court for the District of Columbia held the Tribe had Article III standing, focusing on traceability and redressability. The district court first analyzed traceability. The Tribe alleged that they suffered a procedural injury that “caused harm to the Tribe’s concrete interests in the form of damage to historic, cultural, and religious tribal property.” Id. at *5. The court agreed, finding the Tribe suffered a procedural injury due to the agency’s lack of adherence to the relevant regulation. The court also found that the Tribe was able to connect their injury to the agency’s conduct because the Tribe maintained that the second programmatic agreement would not be satisfactory, as evidenced throughout the administrative record.

Unlike the previous and illustrative district court cases discussed, the district court here spent a significant amount of time on redressability. FHWA argued the Tribe’s injury was not redressable because the Tribe could not identify any mitigation efforts that would alleviate their injury. Id. at *7. Yet, the court determined that there were numerous alternatives. Furthermore, the court reasoned “the Tribe need only show that correcting the alleged procedural violation could change the Agency’s decision in its favor.” Id. It is not necessarily a high requirement but needs to show that the agency’s decision could be changed, not that the decision should.

Is Recent Past Prologue? The Current Energy Case Before the Court
Despite the suggestion in some cases that a more expansive allowance for environmental litigants might be emerging, the Supreme Court has not attempted to modify the central principle in Lujan. That standard demands more from environmental litigants than typical economic litigants. 

Nevertheless, there is an opportunity for the Court to equalize the standing burden. The Supreme Court will consider the issue of standing to assert environmental damage claims in two consolidated cases from the 2024 Term: Nuclear Regulatory Commission v. Texas, No. 23-1300, and Interim Storage Partners LLC v. Texas, No. 23-1312. One of the two questions raised in the two related petitions for certiorari (which were granted and consolidated for argument) is: “Whether, notwithstanding an allegation of ‘ultra vires’ agency action, a person must take steps to become a ‘party’ to an agency proceeding under the Hobbs Act, 28 U.S.C. 2344, in order to then subsequently challenge the agency action resulting from that proceeding in court. . . .” Brief in Opposition by State Respondents in Nos. 23-1300 and 23-1312 at I (questions presented). The State of Texas and the Texas Commission on Environmental Quality argue that they are environmentally “aggrieved” parties based on threatened pollution of Texas’s land, water, and air from spent nuclear fuel stored outside of a nuclear reactor facility.

While framed narrowly as a statutory matter—what is an “aggrieved party” within the meaning of the Hobbs Act?— this case will almost certainly consider the broader policy of whether Congress may limit the standing of a state via an express jurisdictional limitation on suit. 

The Supreme Court adopted the Lujan standard for associational standing some 40 years ago. That standard has become something of a mantra repeated by lower courts to apply to a variety of standing cases, including, as in Diamond Alternative Energy L.P., some involving standing of not environmental associations but rather energy manufacturers. What will happen next with the Court’s yet-to-be-issued decisions in both the NRC v. Texas case and in Diamond Alternative Energy v. EPA is yet to be determined. Thus, we end with the words of the great Yogi Berra: “It’s tough to make predictions, especially about the future.” In the area of standing for environmental and energy plaintiffs, his words are particularly true.

Norman A. Dupont is of counsel at Aleshire & Wynder LLP in Los Angeles, California. Alec Goos is a 3L student (Class of 2025) at the University of Iowa College of Law. They may be reached at ndupont@awattorneys.com and alectgoos@gmail.com, respectively.