Standing to Challenge Regulations Under Mining …resides or transacts business); Occupational...

Standing to Challenge Regulations UnderMining and Environmental Statutes

J. Michael KliseCrowell & Moring LLP

Washington, D.C.

Synopsis§ 3.01. Introduction. ......................................................................... 79§ 3.02. Basic Elements of Standing. ............................................... 82

[1] — Constitutional Requirements. ..................................... 82[2] — Prudential Considerations. .......................................... 83[3] — Congress Can Modify Prudential Considerations

but Cannot Create Standing. ....................................... 84§ 3.03. Standing, Ripeness, and Statutory Limitations. ............... 87

[1] — The Intrinsic Standing Issue in RulemakingChallenges. .................................................................. 87

[2] — Overcoming the Intrinsic Obstacles — the FlexibleApproach of NWF v. Hodel. ....................................... 89

[3] — The Ossification of the Standing Analysis. ................ 92[a] — Government Unsuccessfully Challenges

Industry’s Standing. ......................................... 93[b] — Court Questions Industry’s Standing

but Relents. ....................................................... 93[c] — Court Rejects All Challengers’ Standing. ........ 95

[4] — The Blurring of Standing and Ripeness. ................... 99[a] — The Consequences of Suing Too Early. ........... 99[b] — The Hazards of Suing Too Late. .................... 102

[5] — The Timing of the Inquiry into Standing. ................. 106[a] — Proving Standing at the Pleading Stage. ........ 107[b] — Proving Standing at the Summary

Judgment Stage. ............................................. 108[c] — Proving Standing Post-Judgment. .................. 109

[6] — The Uncertain Future of Standing in RulemakingChallenges. ................................................................ 113

§ 3.04. Conclusion. ......................................................................... 116

§ 3.01. Introduction.The United States Court of Appeals for the District of Columbia Circuit

–– where many challenges to federal agency rulemakings are heard –– hasgrown increasingly rigorous about requiring a party seeking judicial review

Cite as 18 E. Min. L. Inst. ch. 3 (1998)

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of agency regulations to prove its standing to sue.1 Two recent decisions inthe wake of the Supreme Court’s constriction of third-party standing inLujan v. Defenders of Wildlife2 illustrate this development in the context ofcases filed under statutory provisions allowing rulemaking challenges tobe brought within 60 days of the promulgation of the regulation.3

In National Mining Ass’n v. Dep’t of Interior (hereafter NMA v.Interior),4 the D.C. Circuit at oral argument questioned the mining industry’sstanding sua sponte in a challenge to the Surface Mining Control andReclamation Act (SMCRA) regulations, and requested supplementalbriefing, even though no party had raised the issue in summary judgmentproceedings in the district court or in their opening appellate briefs. Afterboth the industry trade association and the Office of Surface MiningReclamation and Enforcement (OSM) had argued in favor of standing, thecourt was satisfied that the industry had standing to challenge a regulation

1 The D.C. Circuit (or its district court) is specified as the venue for judicial review ofrulemaking under numerous federal environmental statutes. See, e.g., Surface MiningControl and Reclamation Act of 1977 (SMCRA), 30 U.S.C. § 1276(a)(1); Safe DrinkingWater Act (SDWA), 42 U.S.C. § 300j-7(a)(1); Noise Control Act of 1972, 42 U.S.C.§ 4915(a); Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C.§ 6976(a)(1); Clean Air Act (CAA), 42 U.S.C. § 7607(b)(1); Comprehensive EnvironmentalResponse, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9613(a). Stillother environmental statutes specify the D.C. Circuit as an alternative forum. See, e.g.,Toxic Substances Control Act (TSCA), 15 U.S.C. § 2618(a)(1)(A)(D.C. Circuit or circuitin which petitioner resides or has principal place of business); Mine Safety and Health Act(MSH Act), 30 U.S.C. § 811(d)(same). A few environmental statutes define venue solelywith reference to the petitioner. See, e.g., Federal Water Pollution Control Act, commonlyknown as the Clean Water Act (CWA), 33 U.S.C. § 1369(b)(circuit in which petitionerresides or transacts business); Occupational Safety and Health Act (OSH Act), 29 U.S.C.§ 655(f)(circuit in which petitioner resides or has principal place of business). If a rule ischallenged in two or more circuits authorized by statute, the cases are consolidated in asingle circuit pursuant to 28 U.S.C. § 2112(a)(3).2 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).3 D.C. Circuit Judge (former Chief Judge) Wald has acknowledged the tightening ofstanding by her own court and the Supreme Court. See Patricia J. Wald, “Thirty Years ofAdministrative Law in the D.C. Circuit,” 11 Ad. Law Bull. No. 13, July 22, 1997, at 1, 7(“[s]ince the mid-eighties, both our court and the Supreme Court have been tightening upon who can take appeals from agency decisions and when”).4 National Mining Ass’n v. Dep’t of Interior (NMA v. Interior), 70 F.3d 1345 (D.C. Cir.1995).

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concerning federal enforcement of state regulatory programs underSMCRA.

By contrast, in Louisiana Envtl. Action Network v. Browner(“LEAN”),5 the court ordered supplemental briefing and held that two ofthe three petitioners — an environmental group, and a coalition of regulatedutility companies — lacked standing to challenge EPA’s regulationsgoverning federal-state relations under the Clean Air Act (CAA).6 Thecourt also held that a third petitioner — a coalition of industry tradeassociations — only “arguably” had standing, and that in any event itschallenge was not ripe even though it, like the other petitioners, had soughtjudicial review within the CAA’s seemingly jurisdictional 60-day periodfor challenging new regulations.7 The court told these petitioners thatthey either had not suffered injury by reason of the regulations or thatthey had to wait until the regulations were actually applied before theirchallenges would be prudentially ripe for judicial review.8

NMA v. Interior and LEAN depart from the D.C. Circuit’s morereceptive view –– and more flexible analysis –– of standing in earlierrulemaking challenges, such as its 1988 decision in the landmark SMCRArulemaking case, National Wildlife Fed’n v. Hodel (NWF v. Hodel).9 Thecourt held that environmental groups had standing and ripe claims againstmultiple OSM rulemaking actions, rejecting arguments similar to those itwould later rely on to question or deny standing in NMA v. Interior andLEAN.10 To further confuse the issue, a 1997 ruling suggests a return tothe court’s prior flexibility.11

5 Louisiana Envtl. Action Network v. Browner (“LEAN”), 87 F.3d 1379 (D.C. Cir.1996).6 Id. at 1382. See 42 U.S.C. §§ 7401, et seq.7 Id.8 Id. at 1384.9 National Wildlife Fed’n v. Hodel (NWF v. Hodel), 839 F.2d 694 (D.C. Cir. 1988).The case consolidated 36 appeals involving 14 district court actions and produced a 155-page slip opinion, 29 of which dealt with standing.10 Id. at 709.11 Reyblatt v. Nuclear Regulatory Comm’n, 105 F.3d 715 (D.C. Cir. 1997)(rejectinggovernment’s argument, similar to court’s holding in LEAN, that petitioners’ relationship

to challenged regulations was too attenuated to provide standing). Id. at 721.

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The court’s mercurial approach to standing — its propensity to raisethe issue even when a party does not, its insistence on strict compliancewith the constitutional elements of standing in LEAN, and the generaluncertainty spawned by its rulings as a whole — cuts against Congress’sgoal of making nationwide environmental regulations judicially reviewablepromptly upon promulgation. LEAN seems particularly parsimonious,because in it the federal court specifically charged by Congress withresponsibility for reviewing facial challenges to regulations opted out andrelegated petitioners to case-specific challenges. While that alternativebecomes more attractive to the courts as regulations become increasinglycomplex, it is equally unattractive to many litigants, who want to achievelegal certainty and avoid costly multiple proceedings.

This chapter examines some of the problems presented by the D.C.Circuit’s treatment of standing and the related doctrine of ripeness inactions for pre-enforcement judicial review of rulemakings. It describesthe uncertainty created by inconsistencies among the decisions themselves,and by the blurring of the constitutional standing doctrine with prudentialconsiderations of ripeness. It also discusses the tension between the narrowview of standing and ripeness and Congress’s repeated authorization ofpre-enforcement judicial review of regulations issued under federalenvironmental statutes. It concludes with note of caution for prospectivelitigants and a plea for clarity in the court’s jurisprudence.

§ 3.02. Basic Elements of Standing.Standing involves two components — constitutional requirements and

prudential limitations.12

[1] — Constitutional Requirements.Under Article III of the Constitution, federal courts are established to

resolve “cases” and “controversies,” not to decide abstract questions oflaw. As Justice Stevens succinctly put it, “We are not statesmen; we arejudges.”13 Standing addresses whether a plaintiff has made out a “case”

12 See Bennett v. Spear, 117 S. Ct. 1154, 1161 (1997)(collecting cases).13 Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 103 (1978)(Stevens,

J., concurring).

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or “controversy” between himself and the defendant — “whether theplaintiff has ‘alleged such a personal stake in the outcome of thecontroversy’ as to warrant his invocation of federal-court jurisdiction andto justify exercise of the court’s remedial powers on his behalf.”14

To satisfy the “case” or “controversy” requirement of Article III, aplaintiff must demonstrate that (1) he or she has suffered, or is immediatelythreatened with, injury in fact which (2) is fairly traceable to the defendant’saction and (3) is likely to be redressed by a favorable judicial decision.15

These legal elements are settled law and have been reiterated in a longline of decisions by the Supreme Court.16 But although the elements aresimple to state, they are troublesome in their application, as the casesdiscussed in this chapter will show.

[2] — Prudential Considerations.Besides having to establish the constitutional elements of injury,

causation, and redressability, a plaintiff suing under a federal statute mustsatisfy “judicially self-imposed limits on the exercise of federaljurisdiction.”17 As the Supreme Court originally conceived them, these“prudential” considerations would ensure that a plaintiff was assertinghis own legal rights and interests, and not just (1) a “generalized grievanceshared in substantially the same measure by all or a large class of citizens,”or (2) the legal rights or interests of third parties.18 More recently, thefocus of the prudential inquiry has fallen on whether the plaintiff’sgrievance falls within the “zone of interests” protected or regulated bythe statutory provision under which he seeks relief.19

The zone of interests test has been troublesome for industry plaintiffssuing under environmental statutes, because courts have been receptiveto the view that economic interests are not protected by statutes whose

14 Warth v. Seldin, 422 U.S. 490, 498 (1975), citing Baker v. Carr, 369 U.S. 186, 204

(1962).15 Bennett, 117 S. Ct. at 1161.16 See Defenders, 504 U.S. at 560-61 (collecting cases).17 Allen v. Wright, 468 U.S. 737, 751, emphasis in text.18 Id. at 499 (collecting cases).19 Bennett, 117 S. Ct. 1161-62.

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overall purpose is environmental protection.20 However, the force of thisargument was substantially diminished in the Supreme Court’s decisionin 1997 in Bennett v. Spear, which made clear that the “zone of interests”was to be determined by reference to the specific statutory provision onwhich the plaintiff or petitioner relied, not the general purposes of thestatute.21 Thus, for example, if an environmental statute contains aprovision requiring regulations to be based on sound scientific reasoning,it can provide a basis for standing not only for those who fear laxenforcement of environmental protections, but also for those who want toavoid “needless economic dislocation produced by agency officialszealously but unintelligently pursuing their environmental objectives.”22

[3] — Congress Can Modify Prudential Considerationsbut Cannot Create Standing.

At first glance, rulemaking challenges brought by a regulated industryseem an unlikely candidate for dismissal for lack of standing. When thegovernment sets out to regulate an industry, the inherent burdens ofregulation should at the very least gain the industry entry into a courthouseto determine whether those burdens are lawful. As the Supreme Courtstated in 1992:

When the suit is one challenging the legality of governmentaction or inaction, the nature and extent of facts that must beaverred (at the summary judgment stage) or proved (at thetrial stage) in order to establish standing depends considerablyupon whether the plaintiff is himself an object of the action(or forgone action) at issue. If he is, there is ordinarily littlequestion that the action or inaction has caused him injury,

20 See, e.g., Bennett v. Plenert, 63 F.3d 915, 919 (9th Cir. 1995)(“only plaintiffs who

allege an interest in the preservation of endangered species fall within the zone of interests”protected by the Endangered Species Act (ESA) emphasis in text), rev’d and remanded,117 S. Ct. 1154 (1997); Allied-Signal, Inc. v. Lujan, 736 F. Supp. 1558, 1560 n.3 (N.D.Cal. 1990)(company lacked prudential standing to invoke ESA in opposition to proposed

plan for cleaning up hazardous waste, because company’s economic goals “clearly [we]reunrelated to the objectives Congress sought to further by enacting the ESA”).21 Bennett, 117 S. Ct. at 1167.22 Id. at 1168.

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and that a judgment preventing or requiring the action willredress it.23

An affected industry’s ability to challenge the regulations also seemsmanifest from the plain language of the statutory provisions authorizingrulemaking challenges. When these provisions bother to delineate a classof plaintiffs at all, the language is typically broad, authorizing suit by“any person,”24 “any interested person,”25 and “any person who may beadversely affected,”26 “any person who participated in the administrativeproceedings and who is aggrieved” by the rulemaking.27 Since there is“ordinarily little question” that the regulated industry is aggrieved,28 anindustry’s standing under these statutes would appear to be a given.

Even in challenges brought by a regulated industry, however, standingis not simply a matter of whether the petitioner falls within the statutorylanguage authorizing suit. Because standing is a constitutional requirement,not just a statutory or judge-made limitation, the Supreme Court has heldthat Congress cannot alter it with the stroke of the legislator’s pen. ArticleIII is nothing less than the “irreducible constitutional minimum” ofstanding, which, unlike the prudential counterparts, cannot “be modifiedor abrogated by Congress.”29

As Professor Schwartz has pointed out,30 the Article III formulationwas not always this unyielding. For example, Justice Harlan once describedthe private attorney general doctrine as an instance in which individuallitigants are given standing to represent the public “despite their lack ofeconomic or other personal interests,” because “Congress hadappropriately authorized such suits.”31 The same flexible view appeared

23 Defenders, 504 U.S. at 561-62 (emphasis added).24 TSCA, 15 U.S.C. § 2618(a)(1)(A)).25 CWA, 33 U.S.C. § 1369(b); CERCLA, 42 U.S.C. § 9613(a).26 OSH Act, 29 U.S.C. § 655(f); MSH Act, 30 U.S.C. § 811(d).27 SMCRA, 30 U.S.C. § 1276(a)(1).28 Defenders, 504 U.S. at 561.29 Bennett, 117 S. Ct. at 1161 (quoting Defenders, 504 U.S. at 560).30 Bernard Schwartz, “Conundrum Confuted: Bennett v. Spear and Citizen Standing,”11 Ad. Law Bull. No. 12, July 8, 1997, at 1.31 Flast v. Cohen, 392 U.S. 83, 120, 131 (1968).

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to lie behind the D.C. Circuit’s observation in 1988 that, although Congresscannot create standing, it can provide “legislative assessments which courtscan credit in making standing determinations.”32

Even under the Supreme Court’s newer, more rigid view, however,Congress can grant an express right of action to persons who, thoughthey meet the constitutional requirements, otherwise might be barred byprudential standing rules.33 But however broad the statutory language,the measure of standing is not simply Congress’s desire to encourage orfacilitate judicial review of rulemakings, but what the Supreme Court hasconstrued to be the Article III elements — injury, causation, andredressability.34

Federal environmental statutes that provide for judicial review ofrulemakings typically contain time and forum limitations.35 Suchprovisions promote administrative finality and regulatory certainty byallowing prompt judicial review of regulations upon issuance and bycentralizing judicial review in a single forum to foreclose conflictingrulings. Insofar as they specify a class of plaintiffs, they also guide thecourt in applying the prudential zone of interests test for standing. But,under the principles just discussed, they do not alter the constitutionalrequirements.

32 NWF v. Hodel, 839 F.2d at 708-09 (holding that Congress’s determination that deletionof minimum environmental standards under SMCRA might lead to lessened protectionmeant that, as to claims raised by environmental groups, Article III causation existed asa matter of law).33 Warth, 422 U.S. at 501. See Bennett, 117 S. Ct. at 1162 (language of citizen suitprovision of ESA, 16 U.S.C. § 1540(g), which allows “any person” to sue “any person”for “any” alleged violation, expands zone of interests of ESA citizen suit provision to itsconstitutional limits; therefore, persons with economic interests, not just those withenvironmental interests, can have standing); NWF v. Hodel, 839 F.2d at 704 n.7 (prudentialrequirement satisfied in environmental groups’ rulemaking challenge because language

and legislative history of SMCRA citizen suit provision, 30 U.S.C. § 1270, signaledCongressional intent that standing be coterminous with constitutional limits).34 See, e.g., LEAN, 87 F.3d at 1382 (rulemaking challenge under CAA); NMA v. Interior,70 F.3d at 1349 (rulemaking challenge under SMCRA); National Coal Ass’n v. Lujan(NCA v. Lujan), 979 F.2d 1548, 1551-52 (D.C. Cir. 1992)(same).35 E.g., SMCRA § 526(a)(1), 30 U.S.C. § 1276(a)(1)(60-day limitation period, in U.S.

District Court for District of Columbia); CWA § 509(b), 33 U.S.C. § 1369(b)(120 days,

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§ 3.03. Standing, Ripeness, and Statutory Limitations.[1] — The Intrinsic Standing Issue in Rulemaking

Challenges.When standing issues arise in cases brought under statutory provisions

authorizing pre-enforcement judicial review of regulations, the key issueoften is whether the petitioner has suffered injury by reason of theregulations. Analytically, injury is an inherent problem in facial rulemakingchallenges, because suit must be brought within two to three months afterthe regulation is issued — usually before the regulation has been appliedin a concrete setting. Pre-enforcement rulemaking challenges are suigeneris, as the Supreme Court explained in 1990:

Under the APA [Administrative Procedure Act], [plaintiff]must direct its attack against some particular “agency action”that causes it harm. Some statutes permit broad regulationsto serve as the “agency action,” and thus to be the object ofjudicial review directly, even before the concrete effectsnormally required for APA review are felt. Absent such aprovision, however, a regulation is not ordinarily consideredthe type of agency action “ripe” for judicial review under theAPA until the scope of controversy has been reduced to moremanageable proportions, and its factual components fleshedout, by some concrete action applying the regulation to theclaimant’s situation in a fashion that harms or threatens toharm him.36

The Court’s remarks suggest that actions for pre-enforcement reviewof regulations are a poor fit for the conventional standing analysis. The“injury” arises not from a regulation’s immediate and direct impact upon

in federal court of appeals in whose jurisdiction such person resides or transacts business);CAA § 307(b), 42 U.S.C. § 7607(b)(60 days, D.C. Circuit); SDWA, 42 U.S.C. § 300j-7(a)(45 days, D.C. Circuit); Noise Control Act § 16(a), 42 U.S.C. § 4915(a)(90 days,D.C. Circuit); RCRA § 7006(a)(1), 42 U.S.C. § 6976(a)(1)(90 days, D.C. Circuit).36 Lujan v. National Wildlife Fed’n, 497 U.S. 871, 891 (1990). SMCRA epitomizes thepurely legal quality of pre-enforcement judicial review of rulemakings because, under

SMCRA, challenges to national surface coal mining rulemakings must be brought in theDistrict of Columbia even though no coal mines are located there. 30 U.S.C. § 1276(a)(1).

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the petitioner, but from Congress’s recognition of the inevitability ofregulatory burdens as time moves forward. In standing parlance, the injuryis not “actual,” but only “imminent,” and thus is susceptible to claims thatit is insufficient to create a justiciable “case” or “controversy.”37 Besideshaving to cope with this vagary, petitioners pay a further price for accessto pre-enforcement review. Under the facial challenge doctrine, they mustshow that the regulation is invalid in all of its applications, not just that itmay be unlawful in a given set of circumstances.38 Arguments that mightprevail in a fact-specific context such as defending against agencyenforcement proceedings can fail under this more demanding standard.39

Because pre-enforcement judicial review of a regulation occurs beforethe regulation itself causes actual injury to a petitioner, a potential standingissue lurks in virtually every rulemaking challenge. In some instances thealleged lack of injury is a function of the subject matter of the regulations— for example, regulations that impose substantive standards may beperceived to threaten more immediate injury (and thus may be deemedmore suitable for immediate review) than regulations that merely establisha general framework for regulation or coordinate federal and stateprograms. In other instances, the focus is on timing. In them, despite theconstraints imposed by statutory limitations periods, standing can fail asmuch from when suit is brought as from who brings it, and also from aplaintiff’s failure to meet the increasing burden of proof on standing at

37 Defenders, 504 U.S. at 560.38 Reno v. Flores, 507 U.S. 292, 300-01 (1993). Under general standing principles,

the determination of a law’s legality “in advance of its immediate adverse effect in thecontext of a concrete case involves too remote and abstract an inquiry for the properexercise of the judicial function.” International Longshoremen’s & Warehousemen’sUnion v. Boyd, 347 U.S. 222, 224 (1954). As Justice Scalia, writing for a seven-membermajority, explained in Reno v. Flores, a court reviewing a facial challenge has

. . . no findings of fact, indeed no record, concerning the [agency’s]interpretation of the regulation or the history of its enforcement. [It has]only the regulation itself and the statement of basis and purposes thataccompanied its promulgation. To prevail in such a facial challenge, [apetitioner] “must establish that no set of circumstances exist under whichthe [regulation] would be valid.” United States v. Salerno, 481 U.S. 739,745 (1987). 507 U.S. at 300-01.

39 See, e.g., Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115

S. Ct. 2407, 2414 (1995).

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successive stages of the litigation. In the cases discussed below, theinterplay of subject matter and timing has led to a confusing jurisprudenceon this important jurisdictional requirement.

[2] — Overcoming the Intrinsic Obstacles — the FlexibleApproach of NWF v. Hodel.

A useful starting point for analyzing the variegated treatment ofstanding in D.C. Circuit rulemaking challenges is the court’s 1988 rulingin NWF v. Hodel.40 In that decision, the court rejected a multi-prongedindustry attack on the standing of environmental groups to challengesurface mining performance standards issued under SMCRA. The miningindustry argued that the plaintiffs had failed to allege a constitutionallyadequate injury from the regulations they had challenged and, with respectto some of the regulations, that they had failed to satisfy the causationelement as well.41

The court divided the standing issues into two broad categories: (1)instances in which OSM had eliminated its prior minimum nationalenvironmental standards, and (2) instances in which it had promulgatedrevised standards.42 In the first category, the court described causation asthe “more difficult issue.”43 The industry made a threefold argument: first,that because the states in implementing their surface mining programscould adhere to the initial regulatory minimums established in 1979 eventhough OSM had proposed to eliminate them in one of the rulemakings atissue, the plaintiffs’ fear of laxer standards was premature;44 second, thatthe new, more nebulous regulations could still be interpreted to conformto the previous minimum standards; and third, that the environmental

40 839 F.2d 694.41 Id. at 703. The industry, besides being a plaintiff in many of the cases that had beenconsolidated for appeal, had intervened on OSM’s side in the challenges brought by theenvironmental groups. Id. OSM itself did not contest the environmental groups’ standing.

Id. at 703 n.5.42 Id. at 706.43 Id. at 707.44 SMCRA enables any state to assume exclusive jurisdiction over the regulation ofsurface coal mining operations within its borders by obtaining OSM’s approval of thestate’s program. 30 U.S.C. § 1253(a).

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groups’ alleged injury could arise only after OSM or a state regulatoryauthority made a future discretionary decision that may be either favorableor unfavorable to them.45

The court rejected all three arguments, noting at the outset that theyrelated as much to ripeness as they did to causation.46 It found industry’sfirst argument “irrelevant,” given that in some states, surface coal miningoperations were directly regulated by OSM’s standards, not by a stateprogram.47 As to the second argument, the court held that “it strainscredulity” to think that OSM, in eliminating the minimum standards,sought to encourage mining operations to provide greater environmentalprotection than the previous regulations required.48 Of particularimportance, the court found that the legislative history concerning theneed for specific regulations supported an inference that causation — aconstitutional requirement — existed “as a matter of law.”49

The court also rejected the industry’s third argument, which the courtsaid was based on a line of distinguishable cases concerning whether theexistence of an intervening discretionary authority blocks standing and/or ripeness.50 In the court’s view, those cases involved attempts to overturnrules or enactments “before such enactments have been enforced against[the challengers] personally,”51 whereas the challenge in this case was to“currently operative rules that require no act of administrative discretionto affect environmentalist plaintiffs.”52 Regardless of whether the futureoperation of the regulations in a concrete setting would harm theseplaintiffs, the court apparently deemed them as “injured” by the mereexistence of the regulations because, in the court’s view, the regulations

45 See id. at 707-08.46 Id. at 708.47 Id.48 Id.49 Id. at 708-09.50 Id. at 709 (citing Brown v. Hotel Employees, 468 U.S. 491 (1984); Pacific Gas &Elec. v. Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190 (1983);International Longshoremen’s & Warehousemen’s Union v. Boyd, 347 U.S. 222 (1954);Cabais v. Egger, 690 F.2d 234 (D.C. Cir. 1982)).51 Id. at 709.52 Id. (citing Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221 (1986)).

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left them with diminished environmental protection. They could properlysue because conduct harmful to them that was previously regulated mightnow go unregulated and furnish no reviewable act of agency discretion toprovide a basis for judicial review.

The court’s analysis of standing for the second category of theenvironmental groups’ rulemaking challenges also focused on causation.Industry argued that the alleged injury from some of the regulations wastoo remote and speculative to support standing. The industry argued thatsuch injury hinged on the chance occurrence of multiple unlikelycontingencies.53 The court denounced this argument:

Industry’s legal pointillism only underscores to us theimportance of reading the causation requirement with an eyetoward reasonableness; for if it is not so read, as ProfessorTribe has noted, it becomes “highly manipulable,” andfocusing on it alone “poses a serious risk that in the guise ofcausality analysis, federal courts will engage in anunprincipled attempt to screen from their dockets claimswhich they substantively disfavor.”54

In retrospect, three aspects of the court’s analysis stand out. First, thecourt did not conduct a plaintiff-specific evaluation of causation (as wouldseem to be required if Congress could not alter the Article III elements),but held that it existed “as a matter of law” because the legislative historyimplied that Congress had so intended.

Second, within the context of this challenge, it should not havemattered that the regulations were “currently operative,” as the courtasserted55— the plaintiffs had sought pre-enforcement review based onan administrative record. In this connection, the court went out of its way

53 Id. at 710 & n.13 (discussing industry’s argument that the alleged injury from theregulation concerning subsidence bonding could occur only upon the concurrence of

multiple separate events, including that subsidence cause damage, that the mining operatornot repair the damage, and that the operator’s insurance required by 30 U.S.C. § 1257(f)be insufficient to repair the damage).54 Id. at 710 n.13 (quoting Lawrence H. Tribe, American Constitutional Law 93 (1sted. 1978)).55 NWF v. Hodel at 709.

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— and, unfortunately, overlooked another provision of the statute — tofind that the plaintiffs were entitled to standing at this stage because theymight have no opportunity later to contest the agency’s failure to implementSMCRA’s requirements adequately. SMCRA’s citizen suit provision, 30U.S.C. § 1270, provides just such a mechanism. It authorizes “any personhaving an interest which is or may be adversely affected” to sue to compelthe government’s compliance with the statute if OSM or a state regulatoryauthority fails to perform any nondiscretionary act or duty under thestatute.56 It is that provision — not SMCRA’s provision for pre-enforcement judicial review of rulemakings, as the court asserted,57 —which Congress meant to be construed to be “coterminous with thebroadest standing requirements enunciated by the U.S. Supreme Court.”58

The court’s failure to take the citizen suit provision into account raisesjust the concern voiced by Professor Tribe that the court said it was tryingto avert — the impression of manipulating standing in furtherance of somesubstantive agenda.

Also illustrative of that concern is the third noteworthy point aboutNWF v. Hodel — its treatment of the contingencies that industry arguedprecluded standing for these plaintiffs under a fact-specific analysis ofcausation. The court emphatically rejected that analytical approach butwould later embrace it in LEAN — disaggregating a plaintiff’s allegationsso as to make them hinge on the occurrence of multiple contingencies asa means of defeating standing at the rulemaking stage.59

[3] — The Ossification of the Standing Analysis.The subject matter of a regulation usually provides solid ground for a

regulated industry’s standing — the industry can claim injury simply byreason of being “an object of the [regulation] at issue.”60 Questions doarise, however, when a regulation applies only indirectly or sets up an

56 30 U.S.C. 1270.57 Id. at 709.58 H.R. Rep. No. 218, 95th Cong., 1st Sess. 90 (1977), quoted in NWF v. Hodel, 839F.2d at 709.59 See infra § 3.03[3][c].60 Defenders, 504 U.S. at 561. See also NWF v. Hodel, 839 F.2d at 703 (no one could

“seriously contest” the standing of the industry plaintiffs.).

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overall structure for regulation, rather than creating substantive standardsfor compliance by the regulated entities. In a series of three cases decidedby the D.C. Circuit between 1992 and 1996, the industry found standingincreasingly problematic. First, in 1992, the government challengedindustry’s standing in a SMCRA rulemaking case, but the court rejectedthat argument. Then, in another SMCRA rulemaking challenge in 1995,the court itself questioned industry’s standing, but ultimately upheld it.Finally, in 1996 the court took a rigid view of the Article III elements anddismissed both industry and environmental group challenges to arulemaking under the CAA for lack of standing.

[a] — Government Unsuccessfully ChallengesIndustry’s Standing.

In the 1992 case, industry challenged regulations issued by OSMconcerning the imposition of individual civil penalties under SMCRA.OSM questioned whether an industry trade association had standinginasmuch as the penalties were directed against individuals, not againstthe companies that made up the trade association.61 In the spirit of NWFv. Hodel, the D.C. Circuit found OSM’s argument “utterly unpersuasive.”62

It held that the trade association had standing because the membercompanies’ own interests were vitally affected — “[t]he very purpose ofthe individual penalties for which [SMCRA] provides is to impel permitteecompliance with SMCRA by giving those who act for the corporationstrong cause to adhere to the law and to abate violations promptly.”63

[b] — Court Questions Industry’s Standingbut Relents.

Neither that ruling nor the court’s apparent receptivity to industry’sstanding in NWF v. Hodel cleared the way for industry in all SMCRArulemaking challenges. In 1995, a different panel of the D.C. Circuit suasponte questioned industry’s standing to challenge OSM’s regulationsconcerning the allocation of enforcement authority between it and state

61 NCA v. Lujan, 979 F.2d at 1551-52.62 Id. at 1551; see NWF v. Hodel, 839 F.2d at 703.63 NCA v. Lujan, 979 F.2d at 1552.

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regulatory authorities.64 Under SMCRA’s idiosyncratic scheme of stateprimacy, each state can assume “exclusive jurisdiction” over surface coalmining operations within its borders by obtaining OSM’s approval of astate program.65 The grant of exclusive jurisdiction, however, is subjectto the federal oversight authority vested in OSM under SMCRA’s intricateenforcement provisions.66

In 1986, the industry filed a rulemaking petition asking OSM to reviseits regulation that allowed OSM to issue a notice of violation to a statepermittee in a state-program state if the state failed to respond adequatelywhen OSM notified the state that the permittee’s mine might be violatingits surface mining permit, the state program, or any other requirement ofSMCRA.67 When OSM denied the petition, the industry sought judicialreview in the U.S. District Court for the District of Columbia as requiredby SMCRA’s judicial review provision,68 and appealed the district court’sunfavorable ruling to the D.C. Circuit.69

Neither the government nor the environmental group intervenors hadcontested the industry’s standing in the district court or in their principalbriefs to the court of appeals. The court, however, raised the issue at oralargument.70 The court had perceived no injury to the industry because,

64 NMA v. Interior, 70 F.3d at 1349.65 30 U.S.C. § 1253(a).66 30 U.S.C. § 1271.67 See 30 C.F.R. § 843.12(a)(2).68 30 U.S.C. § 1276(a)(1).69 See NMA v. Interior, 70 F.3d at 1347-49.70 This case illustrates the insidious character of standing. It “is an ‘essential andunchanging’ predicate to any exercise of [the court’s] jurisdiction.” Florida AudubonSociety v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)(quoting Defenders, 504 U.S. at560). As such, it can be raised at any stage of the litigation by any party or by the courtitself, which is under a duty to examine its own jurisdiction, particularly the plaintiff’s

standing. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). For a more dramaticillustration of these principles, see the discussion in § 3.03[5][c] infra concerning a recentThird Circuit ruling in a citizen suit to enforce the CWA against an alleged polluter. Inthat case, following the penalty stage of bifurcated proceedings, the court held that theplaintiffs lacked standing even though the district court at earlier stages of the litigationhad overruled challenges to their standing, and the court of appeals had affirmed that

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whether enforcement were carried out by the federal agency or by itsstate counterparts, mine operators would be subject to regulation.71

After directing the parties to file supplemental briefs, however, thecourt held that the industry did have standing. It accepted industry’s twomajor arguments: first, that these rules, like the individual civil penaltyrules at issue in NCA v. Lujan, were designed to compel mine operators tocomply with SMCRA and state surface mining laws; and second, that tothe extent the rules created uncertainty and actual conflicts between OSMand state regulatory authorities which would force mine operators toexpend money to satisfy one and then the other, the industry had satisfiedthe injury-in-fact prong of Article III standing. It still dismissed the case,however, for industry’s failure to seek judicial review of the regulationswithin 60 days of their issuance, as SMCRA prescribes.72

[c] — Court Rejects All Challengers’ Standing.Concerns similar to those raised by the court in NMA v. Interior underlay

the court’s holding seven months later in a multi-petitioner challenge toregulations issued by the Environmental Protection Agency (EPA) underthe CAA. Like the regulations at issue in NMA v. Interior, these regulationsdealt with approval of state programs to implement the federal statute. InLEAN, the court held that neither industry nor environmental groups hadstanding to challenge EPA’s delegation rules which established standards

holding. Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron,Inc., 123 F.3d 111, (3d Cir. 1997).71 NMA v. Interior, 70 F.3d at 1349.72 See 30 U.S.C. § 1276(a)(1). The government, while assuring the court that its policy

was “to raise all meritorious defenses, including standing, wherever appropriate,” urgedthat the industry had standing simply because SMCRA authorizes pre-enforcementjudicial review of nationwide regulations. Supplemental Brief for the Federal Appellees(Oct. 23, 1995) at 3-4 (discussing 30 U.S.C. § 1276(a)(1)). This argument, which thecourt did not address, sounds reasonable and comports with NWF v. Hodel but skirts theSupreme Court’s holdings that Congress cannot, by statute, alter the irreducible

constitutional minimum of injury, causation, and redressability. See Warth, 422 U.S. at501; Defenders, 504 U.S. at 560. Whether the government’s litigating position signalsits view that the industry would always have standing to challenge nationwide rulemakingsunder SMCRA (or other federal statutes with similar judicial review provisions) is unclear.By not opposing standing, OSM may simply have wanted the court to reach the further

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and procedures for determining whether to approve a state’s air pollutionprogram under the CAA. The regulations implemented § 112(l) of theCAA,73 which allows EPA to delegate its authority and responsibility toimplement air-pollution requirements to a state if the state’s air pollutionprogram receives EPA approval. The regulations established proceduresfor deciding whether EPA should approve state rules or programs andwhat the ramifications of such approval would be.74

The regulations under CAA § 307(b)(1)which provide that challengesto regulations be filed in the D.C. Circuit within 60 days afterpromulgation75 were challenged by three groups of petitioners: a coalitionof environmental groups, a group of utility companies and utility tradeassociations, and a group of general industry trade associations.76 Eachgroup of petitioners laid its own claim to standing, but only one — thegeneral industry petitioners — came close to succeeding.

The environmental petitioners claimed they were injured because thedelegation rules permitted EPA not to enforce federal standards in a givenstate as soon as EPA approved a state’s proposed program, creating apotentially harmful enforcement gap if a state seeks EPA approval beforeactually putting its program into effect.77 The court held that these

— and, for OSM, the more critical — jurisdictional issue of whether, given SMCRA’s60-day limitations period for challenging regulations, the industry could challenge aregulation outside that period by petitioning for a rulemaking and then seeking judicial

review of the regulation once OSM denied the petition. If this was the government’sstrategy, it worked. Once the court found the industry had standing, it reached the 60-dayissue and ruled in OSM’s favor, affirming the district court’s dismissal of the case. NMA

v. Interior, 70 F.3d at 1349-52.73 42 U.S.C. § 7412(l).74 LEAN, 87 F.3d at 1380 (discussing 40 C.F.R. §§ 63.90-.96). Under the rules, the

federal government would enforce an approved state program “in place of” the federalregulations that otherwise would apply. 40 C.F.R. § 63.90.75 See 42 U.S.C. § 7607(b)(1). The only exception to the 60-day provision is for a petitionbased “solely” on grounds arising after the sixtieth day, in which case the petitioner isgiven until 60 days after the grounds arise. Id.76 See 87 F.3d at 1381. The general industry petitioners included the Clean Air

Implementation Project, the Chemical Manufacturers Association, and the AmericanAutomobile Manufacturers Association. Id.77 Id. at 1382.

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petitioners had not demonstrated sufficient injury for standing. Notingthe generalized nature of their alleged interest in air quality,78 the courtheld that these petitioners had failed to establish concrete and personalinjury because: (1) if no state were to seek delegation of authority, therewould be no “enforcement gap”; (2) even if a gap were to occur in onestate, the court could not assume that it would affect areas actuallyfrequented by these petitioners; and (3) there was no showing that a gapwas imminent, given the “multi-tiered speculation” that a gap wouldoccur.79 Parsing the theory of causation underlying these petitioners’ claimof injury, much as industry had unsuccessfully urged the court to do inNWF v. Hodel,80 the court explained that a gap would not occur unless(1) a state seeks to substitute its program for the federal standards, (2) thestate’s regulations are not in effect at the time EPA might approve thestate’s program, and (3) EPA, despite the lack of state regulations currentlyin place, approves the state program.81

The utility petitioners, despite challenging the regulations as over-restrictive rather than under-restrictive, and despite the assurances inDefenders and NWF v. Hodel that there is ordinarily little question aboutthe injury of a person who is the object of government action,82 fared nobetter than the environmental groups. The utilities alleged injury from theinvasion of rights that would occur if EPA were to approve a staterequirement and enforce it as a federal requirement even though it wasmore stringent than EPA could implement on its own under the CAA.83

The court held that this injury was too hypothetical to establish standing,because these petitioners had identified “no state — never mind a state inwhich one of the utilities petitioners operates — that has adopted anymore stringent rule which is or is about to be federalized by the EPA.”84

Distinguishing its holding in NMA v. Interior that the industry had standing

78 As the court explained, “[I]t is difficult to imagine a grievance more generalizedthan one shared by all persons who breathe.” Id.79 Id. at 1383.80 See supra § 3.03[2].81 Id.82 Defenders, 504 U.S. at 561-62; NWF v. Hodel, 839 F.2d at 703.83 LEAN, 87 F.3d at 1383-84.84 Id. at 1384.

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to challenge state implementation regulations under SMCRA, the courtexplained that, even assuming such a state would seek federal enforcementof its CAA requirements, the enforcement of state regulations by “stateand federal agents, instead of solely by state agents, hardly impends certaininjury” to the utilities.85

The other group of industry petitioners, despite being similarly situatedas the utilities vis-a-vis these regulations, managed to convince the courtthat they might have standing. Doing so, however, required a blunderbusslitigation strategy — the kind of tactic courts usually discourage. Theymade the same arguments the utilities made, but added, according to thecourt, a “galaxy of likely circumstances” in which they might have tocomply with new state standards that require EPA approval shortly beforesome compliance deadline, without giving them time to respondaccordingly.86 The court found that this allegation, “unlike the multi-tieredconjectures” of the other petitioners, “may in fact approach a showing ofinjury.”87 But even then, the court stopped short of a holding that thesepetitioners had shown constitutional standing, and instead dismissed them,with echoes of the mining industry’s unsuccessful challenge toenvironmental group standing in NWF v. Hodel, because their claim was“assuredly prudentially unripe.”88

Unlike their utility industry counterparts, the general industrypetitioners in LEAN at least had the benefit of an analysis that accountedfor, rather than parsed away, Congress’s intent to provide for pre-enforcement judicial review of CAA regulations. But the reason for thediffering treatment is not clear. Their claims, like the other petitioners’claims, could be disaggregated into a chain of contingencies — such aswhether any state would adopt standards, whether the state standards wouldbe more stringent than the federal standards, whether the state would beone in which the petitioner industries operate, and whether EPA wouldfederalize the state standards. Yet the court opined that the further allegedinjury — whether there would be insufficient notice and time to comply

85 Id. (emphasis in original).86 Id. at 1384.87 Id.88 Id.

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— “unlike the multi-tiered conjectures” of the other petitioners, may showsufficient injury for standing.89

This is a perplexing distinction. Whether there would be sufficientopportunity to comply would appear to be no less contingent than thescenarios for which the court had denied standing to the other petitioners.It no doubt reassures a regulated industry to know that it might havestanding in such circumstances. But it is equally unsettling that (1) standingappeared to boil down not to potential injury, but to the superior guessworkof the general industry petitioners’ lawyers, who added a claim of injurythat the utilities could just as plausibly have raised but did not; and (2) thecourt’s rigid application of the Article III elements overlooked its earlierassessment in NWF v .Hodel that industry standing could not be “seriouslycontest[ed]”90 and one of its grounds for finding industry standing in NMAv. Interior — that the regulations, whatever their direct impact, were partof a scheme aimed at compelling the industry’s compliance with the law.91

It is also difficult to fathom why the court tangled with standing at alland did not simply dismiss all three petitioners on ripeness grounds alone.What the court said of the general industry petitioners was true of theother petitioners as well — that, as a prudential matter, judicial reviewcould be postponed to wait for “a rule to be applied [to see] what its effectwill be,”92 and that there was no pressing need to decide the rulemakingchallenges at that time, because the petitioners’ alleged harm would notresult from these regulations themselves, but from a future injury thatmay result from programs that are approved under the regulations.93

[4] — The Blurring of Standing and Ripeness.[a] — The Consequences of Suing Too Early.

The court’s decision in LEAN, like its ruling in NMA v. Interior,underscores that the timing of a challenge to regulations can be as criticalas subject matter in determining whether the challenger has standing. At

89 Id. at 1384 (emphasis added).90 NWF v. Hodel, 839 F.2d at 703)91 See NMA v. Interior, 70 F.3d at 1349.92 LEAN, 87 F.3d at 1385 (quoting Diamond Shamrock v. Costle, 580 F.2d 670, 674(D.C. Cir. 1978)).93 Id. at 1385 (citing Cronin v. FAA, 73 F.3d 1126, 1133 (D.C. Cir. 1996)).

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first blush, the timing of a challenge to an agency rulemaking under atypical federal environmental statute does not seem problematic. Thestatutes themselves seem to supply the answer — the challenge must bebrought within a prescribed period, usually 60 or 90 days after the agencyissues the regulation, unless the grounds for the challenge arise “solely”outside that period. Yet, as the industry had argued in NWF v. Hodel andas LEAN shows, standing can depend on when suit is brought as well ason who brings it. In LEAN, the court observed that the threshold issues ofconstitutional standing and prudential ripeness, “though nominally distinct,often blur in practice.”94 In the court’s view, this acknowledged “unclarity. . . rarely undermines the soundness of judicial results.”95

The soundness of this self-assessment is itself questionable. Theblurring of standing and ripeness has turned the rulemaking challengesinto guesswork, despite the clarity with which Congress addressed timingin most environmental statutes. Consider the two groups of industrypetitioners in LEAN. When the court dismissed the utilities for lack ofstanding, it acknowledged that the dismissal “may partake of ripeness aswell as of standing,” but found the intermingling of doctrines “neithersurprising nor troublesome” because

these threshold doctrines “relate . . . in different thoughoverlapping ways to an idea, which is more than an intuitionbut less than a rigorous or explicit theory, about theconstitutional and prudential limits to the powers of anunelected, unrepresentative judiciary in our kind ofgovernment.”96

This is a grand rationale, but it does little to explain why the courtdismissed the utilities for lack of standing while intimating in dicta thatthe industry petitioners may have satisfied that jurisdictional element. Theutilities lost out because the regulations had not taken hold in a way thatthey claimed would injure them — i.e., no state had yet adopted any more

94 LEAN, 87 F.3d at 1386 (citing Flast v. Cohen, 392 U.S. 83, 94-97 (1968); Winpisingerv. Watson, 628 F.2d 133, 139-40 (D.C. Cir.), cert. denied, 446 U.S. 929 (1980)).95 Id.96 Id. at 1384 (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)(quoting Vander Jagtv. O’Neill, 699 F.2d 1166, 1178 (D.C. Cir. 1982)(Bork, J., concurring)).

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stringent rule that was about to be federalized by the EPA.97 But this isonly a difference in degree, not in kind, from garden-variety pre-enforcement rulemaking challenges authorized by statute that routinelygo forward “even before the concrete effects normally required for APAreview are felt.”98 Analytically, by treating the utilities’ dilemma in LEANas a lack of standing, the court has raised an arbitrary — and potentiallyfatal — barrier to any pre-enforcement review of regulations, because allsuch review by definition occurs on an administrative rulemaking recordcompiled before the regulation’s concrete effects are felt, not on a newrecord compiled in the first instance in the reviewing court. Attacks onstanding in these circumstances will not always be persuasive, of course,but LEAN encourages such attacks (even if the chance of prevailing islow) and assures that at least they will not be deemed frivolous.

On the other hand, by dismissing the general industry petitioners onthe prudential ground of ripeness, instead of on the constitutional groundof standing, the court avoided major confrontation with Congress’sintention that CAA regulations be subject to pre-enforcement judicialreview.99 The court even managed to harmonize the dismissal with thestatutory provisions requiring that review be sought within 60 days of theissuance of the regulations.100 The industry petitioners complained thatthe 60-day provision left them no choice but to file suit when they did.101

The court acknowledged that the inability to challenge a regulation laterwould indeed pose a significant hardship.102 In the court’s view, however,the time limitation could run only against ripe challenges.103 The courtexplained that the CAA permits suit after the initial time limit expires, ifit is based “solely” on grounds arising after the period expires and is filedwithin 60 days of the new grounds arising.104 In this case,

97 Id. at 1384.98 Lujan v. NWF, 497 U.S. at 891.99 87 F.3d at 1385.100 42 U.S.C. § 7607(b).101 Id.102 Id.103 Id.104 Id.

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If federal enforcement of state-adopted regulations provide[sic] the grounds necessary for proper judicial review in thistype of case, then those grounds cannot have arisen until atleast some problematic state regulation has received the EPAapproval necessary for such federal enforcement. In thisparticular case, of course, [petitioners have] not demonstratedthat any such even occurred. Consequently, until [their] claimripens, the statutory time bar has not begun to run.105

Armed with this ruling, these industry petitioners presumably canchallenge the regulations later if EPA approves a problematic stateregulation. Of course, by the time that claim ripens legally, it could bestale in reality. The petitioners’ concern was that program approval andimplementation may occur too suddenly to give them time to respond tothe new standards — hence, they needed and had sought early pre-enforcement review.106 Although these petitioners may not find themselvestime-barred for waiting, the justiciability of their claim at that time maybe little comfort if by then they have suffered precisely the injury —implementation of a state program without adequate notice — that theysought to avert.

[b] — The Hazards of Suing Too Late.The general industry petitioners in LEAN came away with some

assurance that their claims might later be justiciable. In contrast, the miningindustry plaintiffs in NMA v. Interior had no such assurance in theirchallenge, which was filed outside the statutory limitations period. Thelack of that assurance proved fatal.

NMA v. Interior is the flip-side of LEAN. It illustrates the dangers ofpostponing a challenge to a regulation on the belief that the issues havenot ripened sufficiently to be understood by affected entities and reviewedby a court. In NMA v. Interior, the industry plaintiffs did not challenge theregulation within the prescribed 60-day period.107 Rather, after severalyears’ experience with OSM’s aggressive use of the rule to assert federal

105Id.106Id. at 1384.10770 F.3d 1345. See 30 U.S.C. § 1276(a)(1).

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oversight authority in a way that industry believed infringed on stateprimacy under SMCRA, the industry filed a rulemaking petition askingOSM to rescind the rule.108 When OSM denied the petition, the industrysought judicial review of the denial.109

The district court agreed with OSM that the agency had not reopenedthe regulation itself to reconsideration merely by publishing the rulemakingpetition in the Federal Register and soliciting comment on it. Nonetheless,the court also reached the merits of the industry’s claim and upheld theregulation as reflecting a permissible interpretation of SMCRA.110 TheD.C. Circuit, in contrast, declined to reach the merits and held that thedistrict court lacked jurisdiction over industry’s claim that the rule wasultra vires of SMCRA.111 The D.C. Circuit held that, although industryhad standing to challenge the rule, it had failed to file suit within 60 daysof the rule’s promulgation as SMCRA requires.112 Citing analogousprovisions in five other environmental statutes, including the CAAprovision analyzed in LEAN, the court explained that in the judicial reviewprovision of SMCRA (30 U.S.C. § 1276(a)(1)):

108 Id.109 Id. This route for obtaining judicial review had been proposed by OSM when mineoperators, in OSM enforcement actions against them, argued that the regulation — 30C.F.R. § 843.12(a)(2) — substantively conflicted with SMCRA’s scheme of state primacy.In cases such as Clinchfield Coal Co. v. DOI, 802 F.2d 102 (4th Cir. 1986), OSMsuccessfully persuaded the courts that such an argument was a direct challenge to the

regulation and, therefore, that it could not be raised in the context of a specific enforcementaction, but only in an action for judicial review of a rulemaking in the U.S. District Courtfor the District of Columbia, pursuant to 30 U.S.C. § 1276(a)(1). In its brief in that case,OSM urged that the 60-day statutory limitations period would not bar the action forjudicial review if the regulated companies were to file a rulemaking petition and seekjudicial review of OSM’s disposition of the petition. See also Tug Valley Recovery Center

v. Watt, 703 F.2d 796, 800 (4th Cir. 1983)(after 60-day period expires, “the properprocedure for pursuing . . . grievances is to petition the Secretary for amendment of theregulations and, if rejected, to seek judicial review”).110 National Coal Ass’n v. Interior Dep’t, 39 Env’t Rep. Cas. (BNA) 1624 (D.D.C.1994).111 NMA v. Interior, 70 F.3d at 1350-52.112 Id.

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Congress . . . struck a careful balance between the need foradministrative finality and the need to provide for subsequentreview of unexpected difficulties. Permitting review ofappellants’ petition based on grounds clearly available within60 days of the rule’s promulgation would thwart Congress’well-laid plan.113

The court’s strict reading of the 60-day provision showed little of theflexibility that, according to the court in LEAN, such provisions embody.One problem for the court in NMA v. Interior was that the exceptions to thestatutory time limitations were limited to grounds arising “solely” after theexpiration of the limitations period.114 For the LEAN court, the “solely”exception meant simply that judicial review could not occur until the injuryhad ripened.115 But for the court in NMA v. Interior, “solely” meant literallythat — it excluded all challenges based on arguments that might have beenraised within the statutory time limitation, even if the court’s or the affectedparties’ understanding of the regulation might have changed after waitingfor the rule “to be applied [to see] what its effect will be.”’116

The industry argued in NMA v. Interior that it had no occasion tochallenge the regulation upon promulgation because it was not until severalyears later that the industry appreciated how assertive OSM would be inusing the rule to exercise its federal oversight of state surface miningprograms. Industry urged the court to do as it had done in other cases —permit judicial review even after the statutory period expires because“administrative rules and regulations are capable of continuing application”;under this view, limiting judicial review to a period immediately followingrulemaking “would effectively deny many parties ultimately affected by arule an opportunity to question its validity.”117 Indeed, in Montana v.

113 Id. at 1350 & n.2 (citing CWA, 33 U.S.C. § 1369(b)(1); SDWA, 42 U.S.C. § 300j-7(b); Noise Control Act, 42 U.S.C. § 4915(a); RCRA, 42 U.S.C. § 6976(a)(1); CAA, 42U.S.C. § 7607(b)(1)).114 LEAN, 87 F.3d at 1385.115 See supra § 3.03[4][a].116 Id.117 Graceba Total Communications, Inc. v. FCC, 115 F.3d 1038, 1040 (D.C. Cir.1997)(quoting Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C. Cir. 1958), cert.

denied, 361 U.S. 813 (1959)).

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Clark,118 the court had stated that this doctrine would apply under SMCRA— that when a “petitioner challenges the substantive validity of a rule,‘failure to exercise a prior opportunity to challenge the regulation ordinarilywill not preclude review.’”119

But now that the industry had taken advantage of that doctrine, thecourt articulated its restrictive view of the statute’s exception to the timelimitation. The court recanted its earlier view, which it dismissed asdicta.120 The court held that the industry’s challenge to the SMCRAregulation as ultra vires was a purely legal one — that all the argumentsthe industry had made in support of its petition to revise the rule wereavailable to it at the time the rule was adopted.121 For that reason,apparently, the “continuing application” of the rule in the interim betweenthe rule’s adoption and industry’s petition for rulemaking was irrelevantto the jurisdictional issue.

The court’s view that industry’s “purely legal” arguments on the meritscould have been raised when the regulation was first promulgated is, tobe sure, consistent with the notion that pre-enforcement judicial reviewshould be based on the administrative record compiled by the agencyduring rulemaking. In fact, at one point the court expressly declined toconsider nonrecord evidence industry had proffered to rebut OSM’s claimsthat the number of federal notices of violations issued in state-programstates was declining.122 But the effect of the court’s ruling was to precludeaffected parties from raising any “purely legal” arguments in challengesbrought outside the statutory period, even though the agency has construedor interpreted the rule in an entirely unexpected manner.

In addition, in its analysis of standing, the court did consider industry-proffered extra-record material which showed that the regulation had putmine operators in an expensive regulatory crossfire between OSM andstate authorities.123 That evidence had formed the basis for the court’s

118 Montana v. Clark, 749 F.2d 740 (D.C. Cir. 1984), cert. denied, 474 U.S. 919 (1985).119 Id. at 744 n.8 (emphasis in original)(citing Natural Resources Defense Council v.NRC, 666 F.2d 595, 602 (D.C. Cir. 1981) and Functional Music, 274 F.2d 543.120 NMA v. Interior, 70 F.3d at 1351 & n.4.121 Id. at 1350.122 70 F.3d at 1352 n.5.123 Id. at 1349.

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conclusion that the industry had demonstrated sufficient injury to give itstanding. Hence, the court put industry in a Catch-22. If industry haddone as the court said and challenged the rule within 60 days of issuance,before the rule had been enforced or applied in concrete circumstances,industry may well have suffered the same fate as the petitioners in LEAN— a dismissal for lack of standing because of the multiple contingenciesthat would have to occur before it could establish a concrete injury.Although the court had belittled the multiple-contingency argument inNWF v. Hodel as “legal pointillism,”124 LEAN showed that the court wouldengage in just that type of disaggregation of a plaintiff’s claims.125 Hadthe mining industry in this case challenged OSM’s regulation within the60-day period, it is easy to enumerate a chain of “multi-tiered conjectures”that would have precluded standing under the LEAN analysis: (1) whethera given state sought OSM’s approval of a state program, (2) whether OSMapproved the program, (3) whether the state were one in which thepetitioner trade association’s members were affected, (4) whether the statewould inadequately respond to OSM’s notification that a violation mayhave occurred, and (5) whether, even if OSM took enforcement actionagainst the alleged violator, the costs of compliance would be any greaterthan if the state had properly enforced its program and not triggered thefederal intervention.126 Or, to move from standing to ripeness, the courtmay well have concluded, as it did in LEAN, that, despite the time limitationin SMCRA’s judicial review provision, the court could not “ascertain thepractical problems” which the industry might face until “the approval ofsome state’s [program] or some other occurrence cements the applicationand effect” of the rule, and hence that it — like the industry — needed “towait for [the] rule to be applied [to see] what its effect will be.”127

[5] — The Timing of the Inquiry into Standing.Timing is critical to standing not only in terms of when suit is brought,

but when in the course of litigation the evaluation of standing occurs.

124 NWF v. Hodel, 839 F.2d at 710 n.13.125 See LEAN, 87 F.3d at 1383-84.126 See LEAN, 87 F.3d at 1383-84.127 Id. at 1385 (internal quotations and citation omitted).

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NMA v. Interior illustrates that standing issues can arise unexpectedly,because a party or court can spring a standing challenge on a plaintiff atany time as part of the court’s ongoing duty to examine its own jurisdiction.But there is more to it than that. Three recent decisions — one in arulemaking challenge and two in citizen suits — illustrate how a plaintiff’sburden of proof on standing increases as litigation moves forward and is,ironically, at its most demanding after the plaintiff has expended substantialtime, effort, and resources to reach the later stages of litigation.

[a] — Proving Standing at the Pleading Stage.At the pleading stage, a plaintiff’s burden is comparatively light, as

the Supreme Court explained in Bennett v. Spear.128 In that case, ranchoperators and irrigation districts in Oregon filed a citizen suit challenginga biological opinion issued by the U.S. Fish and Wildlife Service (FWS)under the ESA.129 In the biological opinion, the FWS concluded that thelong-term operation of one of the oldest federal reclamation schemes, theKlamath Irrigation Project in northern California and southern Oregon,might jeopardize two endangered species of fish — the Lost River Suckerand the Shortnose Sucker.130 The plaintiffs alleged that their use ofreservoirs and related waterways for recreational, aesthetic, andcommercial purposes, as well as for the primary purpose of obtainingirrigation water, would be irreparably damaged by the biological opinion,which would substantially reduce the quantity of available irrigationwater.131

The government had challenged standing at the pleading stage in amotion to dismiss.132 It argued to the Supreme Court that, notwithstandingthe broad language of the ESA’s citizen suit provision, which authorizes“any person” to file a citizen suit to enforce certain provisions of theESA,133 the plaintiffs failed to satisfy the “injury in fact” element of Article

128 Bennett v. Spear, 117 S. Ct. 1154, 1163-64.129 Id. at 1158. See 16 U.S.C. §§ 1531, et seq.130 Id.131 Id. at 1158-60.132 Id. at 1160.133 16 U.S.C. § 1540(g).

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III standing because they had shown “only a diminution in the aggregateamount of available water,” not in the water that they would receive.134

The Court found the plaintiffs’ showing sufficient. It explained that at thepleading stage, general factual allegations of injury may suffice because acourt at that stage presumes that “general allegations embrace those specificfacts that are necessary to support the claim.”135 In this case, the Courtfound it “easy to presume,” from the plaintiffs’ general allegations, specificfacts under which they would be injured.136

[b] — Proving Standing at the Summary JudgmentStage.

The plaintiffs in Bennett were not home free after the Supreme Court’sruling in their favor. It still remained for them to prove up their standingunder the greater burden that would confront them at the summary judgmentstage or at trial. Failure to meet the burden at that stage doomed theenvironmental group plaintiffs in Lujan v. Defenders of Wildlife.137 Theplaintiffs challenged the lawfulness of a regulation that limited thegeographic scope of the ESA’s consultation requirement to the United Statesand the high seas, and not to extend to foreign nations.138 Afterunsuccessfully challenging the plaintiffs’ standing at the pleading stage ina motion to dismiss,139 the government raised the issue again in a motionfor summary judgment. The district court denied the motion on groundsthat standing had already been upheld, and the Eighth Circuit affirmed.140

The Supreme Court reversed. It explained that since the three elementsof Article III standing

134 Id. at 1163 (emphasis in original).135 Id. at 1164 (quoting Defenders, 504 U.S. at 561).136 Id. at 1164.137 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).138 The consultation requirement, 16 U.S.C. § 1536(a)(2), requires federal agencies toconsult with the expert agency — either FWS or the National Marine Fisheries Service— to ensure that any actions they fund are not likely to jeopardize an endangered orthreatened species or its habitat.139 See Defenders of Wildlife v. Hodel, 658 F. Supp. 43, 47-48 (D. Minn. 1987), rev’d,851 F.2d 1035 (8th Cir. 1988).140 Defenders of Wildlife v. Hodel, 707 F. Supp. 1082 (D. Minn. 1989), aff ’d, 911 F.2d117 (8th Cir. 1990).

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are not mere pleading requirements but rather an indispensablepart of the plaintiff’s case, each element must be supportedin the same way as any other matter on which the plaintiffbears the burden of proof, i.e., with the manner and degree ofevidence required at successive stages of the litigation . . . .In response to a summary judgment motion, . . . the plaintiffcan no longer rest on . . . “mere allegations,” but must setforth by affidavit or other evidence “specific facts,” Fed. R.Civ. Proc. 56(e), which for purposes of the summary judgmentmotion will be taken as true.141

The plaintiffs’ initial victory on standing had rested on their bareallegation that the lack of consultation with respect to certain activitiesabroad increased the rate of species’ extinction.142 But under the moredemanding burden of proof at the summary judgment stage, the plaintiffs’affidavits were insufficient to demonstrate not only that the species werethreatened by funded activities abroad and that there was an injury to theplaintiff organizations’ interest in using or observing the species, but alsothat one or more of the plaintiffs’ members “would thereby be directlyaffected.”143 The affidavits, which demonstrated that two of the plaintiffs’members had traveled abroad and observed species years earlier andintended to do so again at some unspecified time, failed to demonstrate“actual or imminent injury.”144

[c] — Proving Standing Post-Judgment.Since rulemaking challenges are usually decided on motions for

summary judgment, the Supreme Court’s further admonition in Defenders— that if the facts in the standing affidavits are controverted, they mustbe “supported adequately by the evidence adduced at trial”145 — willnormally not come into play. But a recent Third Circuit ruling on standing

141 504 U.S. at 561.142 Id. at 562.143 Id. at 563.144 Id. at 563-64.145 Id. at 561 (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 1115n.31 (1979)).

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at the penalty stage of a bifurcated citizen suit under the CWA, could, ifapplied in the context of a rulemaking challenge, raise many of the samequestions raised by the D.C. Circuit’s ruling in LEAN about the extent towhich statutory language can confer standing.146

In Public Interest Research Group of New Jersey, Inc. v. MagnesiumElektron, Inc. (MEI),147 the plaintiff environmental groups filed a citizensuit under the CWA against a chemical manufacturer for violating theterms of its National Pollutant Discharge Elimination System (NPDES)Permit.148 The plaintiffs based their standing on their members’recreational activities (hiking, walking, swimming, fishing, etc.) in, on,and along a canal and river downstream from the creek into which thedefendant allegedly discharged the pollutant.149 The manufacturerstipulated to committing 123 violations of its permit, and the district courtfound it liable for an additional 27 violations for excess discharges oftotal organic carbon (TOC). The district court also issued a declaratoryjudgment that the plaintiffs had standing based on their affidavits, whichshowed actual injury and cited reports stating that excess TOC usuallydepletes the amount of oxygen and harms aquatic life.150

In later proceedings, the district court imposed $2.625 million inpenalties on the manufacturer and awarded the plaintiffs $524,899.09 inattorneys fees and expenses. The court also, however, credited theundisputed testimony of the defendant’s expert that the discharge ofviolations had neither caused nor threatened any harm to the aquaticecosystem of the creek and in fact may have improved it by adding nutrients

146 See supra § 3.03[3][c].147 Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc.(MEI), 123 F.3d 111 (1997).148 The CWA generally prohibits the discharge of pollutants from a point source, butauthorizes such discharges subject to effluent standards and limitations in an NPDES

permit. See 33 U.S.C. §§ 1311, 1342. The CWA authorizes citizen suits to enforce anysuch effluent standard or limitation. Id. § 1365(a). Federal district courts have jurisdictionin citizen suits to enforce the standards and limitations and to impose civil penalties onthe violator. Id.149 MEI, 1997 WL 434864 at *2.150 Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 34

Env’t Rep. Cas. (BNA) 2077 (D.N.J.), aff ’d, 983 F.2d 1052 (3d Cir. 1992).

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in which it was deficient.151 On appeal, the Third Circuit held that theplaintiffs lacked standing and vacated the district court’s judgment forlack of jurisdiction.152 The court held that the district court’s finding thatthe pollution did not harm the creek’s ecosystem undermined the earlierconclusion that the plaintiffs had suffered or will suffer injury.153

In so ruling, the court significantly limited the scope of citizen suitsauthorized by the CWA. The court explained that although citizen suitprovisions are Congress’s way of “draft[ing] citizens as private attorneysgeneral,” the authorization is “inherently limited” by the elements of ArticleIII standing.154 The court observed that the CWA does not endow privatecitizens with the same enforcement powers as the EPA or coordinate stateagencies. Whereas the government agencies could use their enforcementauthority to sue the manufacturer for failing to comply with the terms ofits permit, private citizens could not sue — even over admitted violations— absent some showing of injury or threat of injury to them.155

MEI, like LEAN, involved a denial of standing to plaintiffs whoseemingly had a strong claim to it because their cause of action wasexpressly authorized by statute — the citizen suit provision of the CWAin MEI and the judicial review provision of the CAA in LEAN. Bothdecisions comport with the Supreme Court’s analysis that, irrespective ofstatutory provisions, Article III’s “irreducible constitutional minimum”of injury-in-fact, causation, and redressability must be met.156 But theavailability of preenforcement judicial review of regulations, which wastightened in LEAN on the D.C. Circuit’s insistence that the petitionerssatisfy the Article III elements independent of the statutory grant of acause of action to them, could be stymied altogether if courts were toapply the rigors of MEI’s injury analysis to reevaluate standing at theclose of a rulemaking challenge. That is because, even in the best ofcircumstances favoring justiciability, injury in a preenforcement

151 MEI, 123 F.3d at 116152 Id. at 120.153 Id. at 119.154 Id.155 Id. at 120.156 See Bennett, 117 S. Ct. at 1161.

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rulemaking challenge is intrinsically conjectural — that is, even if theregulations have in fact been applied in a concrete setting, a court inpreenforcement judicial review engages in the fiction that there is no“concrete action applying the regulation to the claimant’s situation in afashion that harms or threatens to harm him.”157 A plaintiff in such a casewould face a virtually insurmountable barrier under MEI’s demandingapplication of the Article III requirements for standing.

The relation between citizen suits such as MEI and rulemakingchallenges is not as remote as it may seem. One function of citizen suits,like challenges to agency rulemakings, is to assure that an agency complieswith the statute it is charged with implementing — the citizen suit bycompelling the agency to perform duties required by the statute,158 andthe rulemaking challenge by compelling the agency to act “in accordancewith” the statute when it issues regulations.159 The kinship between thetwo types of suits is evident in NWF v. Hodel, where the D.C. Circuitrationalized the environmental groups’ standing based on the legislativehistory of SMCRA’s citizen suit provision, not its judicial reviewprovision.160 To have standing in such a suit, must a plaintiff show notonly that the agency has failed to perform a mandatory duty, but also, asin MEI, that the failure has caused him actual or imminent injury beyondmerely violating the terms of a permit or a provision of the statute? Musta plaintiff in a preenforcement rulemaking challenge show further injury,beyond agency procedural error or the regulation’s substantiveinconsistency with the statute, in order to maintain his suit?

One answer is simply that the MEI analysis does not apply because,as the Supreme Court observed in Lujan v. NWF, preenforcementrulemaking challenges are sui generis and entail unique considerations ofstanding.161 But that answer does not explain the D.C. Circuit’s demands

157 Lujan v. NWF, 497 U.S. at 891.158 See, e.g., CAA, 42 U.S.C. § 7604(a)(2); CWA, 33 U.S.C. § 1665(a)(2); ESA, 16U.S.C. § 1540(g)(1)(C); SMCRA, 30 U.S.C. § 1270(a)(2).159 See, e.g., APA, 5 U.S.C. § 706(2); SMCRA, 30 U.S.C. § 1276(a)(1).160 NWF v. Hodel, 839 F.2d at 709 (citing H.R. Rep. No. 218, 95th Cong., 1st Sess. 90(1977)).161 Lujan v. NWF, 497 U.S. at 891.

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in NMA v. Interior and LEAN that the industry show some further injurybeyond merely being the object of regulation.162 Nor does it explain theD.C. Circuit’s view in NWF v. Hodel that the environmental group plaintiffshad standing because they were challenging “currently operative” rulesfor which there was apparently some concrete context for measuring injury.In those cases, the court seems to have imported concepts from generalstanding law into the idiosyncratic context of preenforcement rulemakingchallenges, to the detriment in some in some instances of Congress’s policyfavoring that type of judicial review.

[6] — The Uncertain Future of Standing in RulemakingChallenges.

Fortunately, the D.C. Circuit has not yet applied the LEAN analysis –– much less the Third Circuit’s intensive constitutional scrutiny in MEI –– to rulemaking challenges generally. The court’s recent ruling in Reyblattv. U.S. Nuclear Regulatory Comm’n163 shows that the court’s priorreceptiveness to standing in rulemaking in cases such as NWF v. Hodelretains some vitality.

In Reyblatt, the petitioners (a scientist and a citizen group) soughtreview of regulations issued by the Nuclear Regulatory Commission(NRC) in September 1995 concerning reporting requirements forcontainment leakage rate by nuclear power plants.164 Prior to March 1995,licensees had been required to file with the NRC summary reports of allcontainment leakage tests they conducted.165 The reports were madeavailable for public inspection in the agency’s public document room.166

In March 1995, NRC issued a regulation reducing the reportingrequirements, so that the only reports which had to be filed — and whichwould be available for public inspection — were reports of failed tests.167

Then, in September 1995, the NRC further revised the testing requirements

162 See supra § 3.03[3][b]-[c].163 Reyblatt v. U.S. Nuclear Regulatory Comm’n, 105 F.3d 715 (D.C. Cir. 1997).164 Id. at 717.165 See id. at 718.166 Id.167 Id.

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to add a new testing alternative, but with reporting requirements that wereessentially identical to those adopted under the March rule.168

The petitioners did not seek judicial review of the March rule, but didchallenge the September rule. NRC challenged the petitioners’ standing.169

The court held that the petitioners had demonstrated injury in fact becausethe restriction on their access to testing data made it more difficult forthem to determine whether they had a basis for filing a petition to modifyor suspend the license, as any member of the public can do under NRC’sregulations.170

The focus of NRC’s argument, however, was that the petitioners failedto satisfy the causation and redressability elements of Article III.171 It isnot difficult to imagine, in the wake of the dismissals on thresholdjurisdictional grounds in LEAN and the court’s sua sponte challenge tostanding in NMA v. Interior, the D.C. Circuit agreeing with the agency’sarguments. Much as the court had scrutinized the Article III elements inLEAN, the Reyblatt court might have examined causation and redressabilityand agreed with NRC that: (1) the petitioners’ alleged injury from thereduced reporting requirements was attributable to the March rule, whicheliminated the more stringent reporting requirement, not the Septemberrule, which added no further reduction; and (2) vacating the Septemberrule would not redress the alleged injury, because it would still leave inplace the March rule containing the reduced reporting requirement. Inaddition, the court may well have followed the lead of NMA v. Interiorand taken a hard line on the petitioners’ failure to seek judicial reliefwhen the reduced reporting requirement was first promulgated in Marchin conjunction with the existing testing method, rather than wait until theSeptember rulemaking that promulgated the alternative testing methodand carried forward the March reporting requirements.

The court, however, chose to accommodate the petitioners’ point ofview in this instance. The court excused petitioners’ failure to seek judicialreview of the March regulations, because they had limited their claim of

168 Id. at 718-19.169 Id. at 720.170 Id. at 721. See 10 C.F.R. § 2.206.171 Reyblatt, 105 F.3d at 721.

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injury to the reporting requirements under the new testing optionpromulgated in the September regulations.172 And, as to redressability,the court found in the petitioners’ favor for a reason that seemingly wouldassure standing in virtually any rulemaking challenge — even incircumstances such as those in LEAN:

[T]he relief they seek — vacatur of the September rule —could remedy their inquiry by requiring the NRC to undertakea new rulemaking with respect to reporting under theperformance-based option which, in turn, would enablepetitioners to argue the propriety of more stringent reportingrequirements under the performance-based option.173

This refreshing analysis harkens back to the rationale that recognizesthe sui generis character of rulemaking challenges and the calculus ofstanding they entail. In this instance, the petitioners satisfied theredressability element because, like any preenforcement challenger of aregulation, the relief they wanted was the invalidation of the regulationand its replacement with something more favorable to their point of view.The decision showed no trace of judicial angst over “multi-tieredconjectures” or other such problems that haunted the petitioners inLEAN,174 even though these kinds of uncertainties were present here,too. For example, under D.C. Circuit precedent it is at least conjectural, ifnot plain unlikely, that the petitioners would be automatically entitled tovacatur of the September rule if they had prevailed on the merits. Whenan agency fails to explain its rule adequately — which was the gravamenof the petitioners’ suit175 — the usual remedy in the D.C. Circuit is not tovacate the rule, but to remand to give the agency an opportunity to explainits reasoning.176 Moreover, even if the court had vacated the Septemberrule, other contingencies would remain, including whether the court would,

172 Id. at 721.173 Id.174 See LEAN, 87 F.3d at 1384.175 See Reyblatt, 105 F.2d at 722-23.176 Checkosky v. SEC, 23 F.3d 452 (D.C. Cir. 1994); see also id. at 462-66 (separateopinion of Silberman, J.)(cataloging 29 cases in 1991-1993 in which the D.C. Circuitremanded for inadequate explanation without vacating the agency action).

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177 87 F.3d at 1382 (citing Allen v. Wright, 468 U.S. 737, 751-52 (1984).178 The debate is in full bloom in Florida Audubon Society v. Bentsen, 94 F.3d 658(D.C. Cir. 1996)(en banc), which concerned an environmental group’s standing to sueunder the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321, et seq. Aseverely divided en banc court reversed a divided panel decision and overruled priorprecedent concerning standing to challenge the Treasury Department’s failure to preparean environmental impact statement in conjunction with issuing a clarification of a ruleexpanding a tax credit for the use of an alternative fuel additive. The decision producedsome strong pronouncements. The majority opinion declared that:The federal judiciary is not a back-seat Congress nor some sort of super-agency. Theabsence of standing for these appellants means that they cannot get their foot in the doorof the courthouse to prove their avowed goal of environmental protection. The worthinessof that goal, however, cannot and should not blind the federal judiciary to the stricturesof our own constitutional role — the hearing of only actual cases between proper litigants.94 F.3d at 672.

The four-judge dissent accused the majority of imposing “so heavy an evidentiaryburden on appellants to establish standing that it will be virtually impossible to bring aNEPA challenge to rulemakings with diffuse impacts.” Id. at 675 (Rogers, J., dissenting).Even a concurring judge “regret[ted] that the court has adopted new criteria for theestablishment of standing in NEPA cases that will erode the effectiveness of one of themost important environmental measures of the past generation.” Id. at 672 (Buckley, J.,concurring).

The decision immediately engendered confusion within the Circuit. Within a week,it was the basis for the district court’s denial of standing to the timber industry to challengealleged amendments to management plans for national forests, even though four daysearlier a D.C. Circuit panel, notwithstanding the en banc ruling in Florida AudubonSociety, had just upheld standing for similarly situated plaintiffs in another case. Compare

or even could, order the NRC to promulgate a new regulation, and whether,if not so ordered, the NRC would do so on its own. Reyblatt shows thatthe court can, when it chooses to, override the concern with contingenciesthat it had elevated to a level of constitutional significance in LEAN.

§ 3.04. Conclusion.Where do these cases, taken together, leave a prospective challenger

of an agency rulemaking under a federal environmental statute? As thecourt said in LEAN, “the precedential slate on standing . . . is hardlyuncluttered.”177 The decisions just discussed, though perhaps well-reasoned when considered individually, do little in the aggregate to relievethe clutter. Perhaps they are part of an ongoing philosophical debate withinthe circuit on the proper role of the judiciary in construing and reviewingadministration of the nation’s environmental laws.178 But, in any case,

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they contain the seeds of much confusion for lawyer and client alike. AsD.C. Circuit Judge Wald wrote recently:

We now have a Talmudic jurisprudence, indecipherable tomost, and in some cases contradictory within itself as to whomay bring an agency appeal. Is it any wonder that agenciesnow raise jurisdictional challenges in 51% of the agencyappeals brought in our circuit?179

The law of standing in the D.C. Circuit is full of traps for the waryand unwary alike. Until the court’s views on standing coalesce around anintelligible and consistent analysis, those who fear that a new regulationposes potential harm — even if the likelihood of harm seems remote —have little choice but to exercise an abundance of caution, challenge itwithin the statutory time limit prescribed for preenforcement judicialreview, and leave it to the court to sort out whether the case is justiciable.Suing early may mean the needless expenditure of resources on a claimthat a court will decline to hear for lack of standing or ripeness, but adismissal on those grounds, with a chance of suing later, is preferable tothe alternative of finding oneself forever time-barred after postponing suitwithout the court’s blessing.

In reality, prudential considerations lie behind many if not moststanding decisions, whether the court openly acknowledges it or insteadopts to apply the constitutional requirements strictly rather than flexibly.Prospective litigants would benefit if the rulings strived to be truly“prudent” — “discreet, . . . circumspect, . . . careful in providing for thefuture,”180 and not simply an expedient to postpone hard issues for anotherday (LEAN) or, indeed, forever (NMA v. Interior).

California Forestry Association v. Thomas, 936 F. Supp. 13 (D.D.C. 1996), with MountainStates Legal Foundation v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996).179 Patricia J. Wald, “Thirty Years of Administrative Law in the D.C. Circuit,” 11 Ad.Law Bull. No. 13, July 22, 1997, at 8.180 Random House Dictionary of the English Language 1557 (2d ed. unabridged 1987).

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