What Do Gay Rights Cases Say about Environmental Standing to Sue

By Michael Caplan, Esq. (GGU Grad 2012)

The two recent landmark cases addressing gay rights, Perry and Windsor, impact the practice of Environmental Law. Both cases address whether a party has standing, which is required to bring suit in a Federal court.

Standing: The Gateway into the Court

First, a brief background on standing. Whether a party has standing “depends upon whether the party has alleged such a personal stake in the outcome of the controversy… to ensure … [the dispute will be] capable of judicial resolution.” Sierra Club v. Morton (1972) 405 U.S. 727, 732.

The Court in Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, went further and defined a personalized stake as one requiring a party to suffer a concrete and particularized injury, 560-561. Thus, “[t]he relevant showing for purposes of Article III standing, however, is not injury to the environment but injury to the plaintiff.” Friends of the Earth, Inc. v. Laidlaw (2000) 528 U.S. 167, 181. This means that there has to be a direct injury to a person rather than an indirect general injury. In response to determining specific injuries that a person can suffer the Court has given us some examples: economic[1], recreational[2], aesthetic[3], conservational[4], spiritual[5] and deprivation of rights[6].

Perry and 3rd Party Standing and the Right of Intervention

The Perry case dealt with 3rd party standing and the right of intervention. In the initial Perry Case, Perry v. Schwarzenegger (2010) 704 F.Supp.2d 921, the petitioners were same-sex couples, and the respondents were proponents of Proposition 8 who had intervened in the case because the California Governor and the California Attorney General declined to defend the case though they responded to the complaint and did not default. The petitioners had standing as injured parties; their injury was a deprivation of rights because they were prevented from marrying as same sex couples. The District Court ruled that Proposition 8 was unconstitutional because it violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution.

In response to the District Court’s decision the respondents appealed the decision to the 9th Circuit Court of Appeals, which affirmed the District Court’s decision on narrower grounds. Hollingsworth v. Perry (U.S., June 26, 2013, 12-144) 2013 WL 3196927.

The respondents once again appealed the decision, and the case was granted certiorari by the United States Supreme Court. The United States Supreme Court concluded that the respondents lacked standing to appeal the decision; both at the 9th circuit level and the United States Supreme Court level. The Court reasoned the respondents could not bring the claim because their level of interest was the same as the “general interest of every California citizen”. Hollingsworth at 2. The respondents in Perry

“claim that they may assert the State’s interest on the State’s behalf, but it is a ‘fundamental restriction on [the Court’s] authority’ that in the ordinary course, a litigant . . . cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio, 499 U. S. 400, 410.”

The Court concluded that in order to have standing respondents must “show a personal injury, separate from the State’s indisputable interest in the validity of its law, than would California’s Attorney General or did the legislative leaders held to have standing in Karcher v. May, 484 U. S. 72 (1987).’ Reply Brief 6. But far from supporting petitioners’ standing, Karcher is compelling precedent against it.Hollingsworth at 2.

In Karcher v. May, the New Jersey legislature enacted a statute that permitted students the ability to observe a 1-minute period of silence before the start of the day. Public school children and their parents brought suit challenging the legality of the statute.

“When it became apparent that neither the Attorney General nor the named defendants would defend the statute, Karcher and Orechio, as Speaker of the New Jersey General Assembly and President of the New Jersey Senate, respectively, sought and obtained permission to intervene as defendants on behalf of the legislature. Appellees entered into a stipulation dismissing the suit against the named defendants, but the District Court refused to accept the stipulation out of concern for the effect it might have on the jurisdictional posture of the case. The legislature, through its presiding officers, carried the entire burden of defending the statute.” Karcher 108 S.Ct. 388, 391-392.

The trial court held that the challenged statute violated the establishment clause, and the Appeals Court affirmed. The Supreme Court concluded that the Karcher and Orechio lacked standing because they no longer held their positions as Speaker and Senate member, and it was their incumbents who were to take over the case. Thus when the case went to the Court of Appeals it should have been dismissed for lack of standing.

In light of Hollingsworth and Karcher, standing can never be established when respondents who are initiative sponsors as opposed to legislators or executive officials authorized to represent the state are attempting to defend a statute in place of the Attorney General because respondents will not have suffered a concrete and particularized injury; rather suffering an indirect injury that every state resident would have suffered.

The Fall of DOMA

In contrast in U.S. v. Windsor (U.S., June 26, 2013, 12-307) 2013 WL 3196928, the decision addresses a person’s standing when bringing a claim against the unconstitutionality of a legislative act, the Defense of Marriage Act (DOMA). The Court concluded that as long as a person has a direct personal interest in a legislative act, a person could have standing. However, this case also reiterated prudential standing, which allows the Court to refuse to take a case if there is insufficient advocacy on each side to assure the case is properly presented.

In Windsor, Edith Windsor was contesting an assessment of $363,053 in estate taxes on her wife Thea Spyder’s estate. The two women, Edith Windsor and Thea Spyer, were married in Ontario, Canada in 2007. Both women were residents of New York, which recognized same sex marriages performed in other states. In 2009, Spyer died leaving her entire estate to Windsor, who then paid $363,053 in estate taxes. Windsor sought a refund of the amount, but was barred by DOMA. She promptly brought suit challenging the constitutionality of the DOMA.

The Court ruled that Windsor possessed sufficient standing because she was directly harmed by the legislation. It was an actual concrete harm that was more than something every citizen would suffer. The IRS’s failure to refund her funds due to DOMA was a harm that was economic in nature; therefore she had sufficient standing to bring her claim under Laidlaw. Even though the IRS agreed that DOMA was unconstitutional, its failure to allow the refund created a sufficient justiciable case allowing for District Court jurisdiction, according to the United States Supreme Court.

The standing problem, however, arose with the appeal. An amicus, a committee of the House seeking to protect DOMA, argued that once the District Court agreed with Windsor, by the nature of the federal government’s position agreeing with the decision, it was no longer an adverse party. Therefore, it had no standing.

The Supreme Court at this point turned to the concept of prudential standing, which gives the Court the power to deny hearing a case because, for example, when another government agency is better-equipped or more competent to address the issue.

“Rules of prudential standing, by contrast, are more flexible ‘rule[s] . . . of federal appellate practice,’ Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 333 (1980), designed to protect the courts from ‘decid[ing] abstract questions of wide public significance even [when] other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.’ Warth, supra, at 500” Windsor at 7.

Though the Executive Branch felt DOMA was unconstitutional, it believed it was compelled by its executive duty to enforce the law so it appealed and continued to refuse to pay the refund. The purpose of the prudential standing discussion was to address the difficultly that the Court faced when the Executive Branch agreed with Plaintiff Windsor, while the House submitted briefs supporting DOMA’s constitutionality.

As the court put it :

Even when Article III permits the exercise of federal jurisdiction, prudential considerations demand that the Court insist upon “that concrete adverseness which sharpens the presentation of issues upon which court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 (1962).

Ironically, the participation of the House committee challenging the court’s wisdom in hearing the case became the basis for the court to reject any prudential bar to standing. The Supreme Court held that the House’s participation assured that there would be sufficient adversariness.

However, the Court was not happy to be in this predicament and further made it clear that “there is no suggestion here that it is appropriate for the Executive as a matter of course to challenge statutes in the judicial forum rather than making the case to Congress for their amendment or repeal.” Windsor at 13. Nevertheless, while the Court struggled with the decision to take the case, especially since the Executive Branch believes DOMA to be unconstitutional, the Court realized it was the best adjudicator of the case and the most appropriate forum for resolving DOMA’s legality.

Legal Unrest Written in Law – Defendant Standing

Standing issues typically arise on the part of the plaintiff, and are usually overlooked on the part of the defendant. It appears that in Perry v. Schwarzenegger, District Court Judge Walker did not recognize the standing issue on the defendant intervener’s side. Instead he granted Proponents of Proposition 8 (“Proponents”) motion to intervene based upon FRCP 24(a). Accordingly Proponents met “all four of the FRCP 24(a)’s criteria:

(1) their motion to intervene is timely, filed just days after plaintiffs filed the complaint; (2) as official proponents, they have a significant protectable interest in defending Prop 8’s constitutionality; (3) their interest in upholding Prop 8 is directly affected by this lawsuit; and (4) their interest is not represented by another party, as no defendant has argued that Prop 8 is constitutional.”[7]

Chief Justice Walker ruled this way because of the last factor, as the Attorney General believed that proposition 8 was unconstitutional.[8] While a party is allowed to intervene in an action, they still must have standing. The Court held in Karcher that the Defendants lost standing when they finished serving their term in office, and thus their right to appeal became null and void despite their continued defense.

In Diamond v. Charles (1986) 476 U.S. 54, 67, the Court held that at the Appellate Court level the Defendant intervener must have a “concrete injury required by Art. III.” And the Court refused to address “whether a party seeking to intervene before a District Court must satisfy not only the requirements of Rule 24(a)(2), but also the requirements of Art. III.” Id. at 68-69.

The 9th Circuit affirmed this issue in Didrickson v. U.S. Dept. of Interior (9th Cir. 1992) 982 F.2d 1332, 1337-38, “A permissive defendant-intervenor must have independent jurisdictional grounds on which to pursue an appeal, absent an appeal by the party on whose side the intervenor intervened.” And once again in Western Watersheds Project v. Kraayenbrink (9th Cir. 2010) 620 F.3d 1187, 1196, “Absent the government, however, Intervenors must now, and for the first time, establish Article III standing.” Failing to address defendant standing at the Trial Court level poses issues because a defendant intervenor may not be the proper party at the onset of the case.

In Hollingsworth, Chief Justice Roberts’ opinion takes no notice of the standing issue at the Trial Court level. The opinion merely states there was no standing at the 9th Circuit nor at the Supreme Court level because Proponent’s injury was no different than every citizen. So the question remains, why didn’t the Supreme Court address this issue? Chief Justice Roberts’ had the perfect opportunity to discuss, and adjudicate the issue of whether a defendant must have standing at the Trial Court level, an issue that has been developing at least since Diamond.

How Do We Make Sense of All of This in Environmental Law?

In Environmental law, standing issues are extremely significant because showing harm has always been a difficult step. However, as the cases have historically progressed harm has become easier for Environmental Lawyers to show, until the Supreme Court’s current term

First, a majority in Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013) stated that the harm showing for standing must be “certainly impending”, though in footnote 5 it softened the blow by saying, “Our cases do not uniformly require plaintiffs to demonstrate that it is literally certain that the harms they identify will come about. In some instances, we have found standing based on a ‘substantial risk’ that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm.” 133 S.Ct. at 1150. The case found that fears of NSA surveillance were speculative, ironic considering the recent exposures of NSA surveillance in the press.

As a result of Hollingsworth, it will be more difficult to prove standing because there will be an additional burden on the proof that there is a legitimate injury, and not one that is merely illusionary.

Article III standing ‘is not to be placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests.’ ‘ Diamond, 476 U.S., at 62, 106 S.Ct. 1697. No matter how deeply committed petitioners may be to upholding Proposition 8 or how zealous their advocacy,” post, at –––– (KENNEDY, J., dissenting), that is not a ‘particularized’ interest sufficient to create a case or controversy under Article III.” Hollingsworth at 12-13.

While it has always been true that the injury must be more than illusionary, these new rulings will create additional burdens when trying to establish standing when challenging the constitutionality of laws. In the ever-nearing future, Environmental Activists will be dealing with Global Warming regulations and legislation. It is conceivable that this legislation will be inadequate and may even be unconstitutional if it is inappropriately attempting to preempt innovative state legislation as found in California. Environmental organizations may want to challenge these rules or statutes but may have difficulty showing how they are different than the rest of the public.

Also, the Court may use prudential standing as a possible strategy to get EPA to adjudicate issues rather than the Court. If EPA, or the federal government does not want to defend a law, it will clearly be the challenger’s burden to overcome not only Article III standing, but also the presumption that the EPA and NOT the Court is the best adjudicator and without sufficient adversariness it should not hear the case.

Further, on the state level, if there is a positive initiative to protect the environment in the face of a conservative state government, and it wins, but is challenged in federal court by polluters and the governor and attorney general fail to defend the initiative, environmentalists may be blocked from doing so if they are not able to show individual particularized harm. Without particularized harm, it is a harm that is suffered by every citizen. In other words, the only person who can bring the claim is the Attorney General. But, someone who has standing may act as a private Attorney General to litigate issues of public interest in a present case. Association of Data Processing Service Organizations, Inc. v. Camp (1970) 397 U.S. 150, 154. However,“[i]f, after receiving notice of a private citizen’s intent to sue, the EPA chooses to pursue a case, the proposed citizen suit is barred. If the EPA takes no action, citizens acting as ‘private attorney generals’ may seek declaratory and injunctive relief and civil penalties.” Citizens for a Better Environment v. Steel Co. (7th Cir. 1996) 90 F.3d 1237, 1241.

In most cases, one would expect that a positive environmental initiative could be defended by residents who can show direct harm from the pollution that would be avoided, but environmental lawyers must be sure to make that showing. In global warming cases, that could prove more difficult. See Native Village of Kivalina v. ExxonMobil Corp. 696 F.3d 849, 867 (2012)(Concurring Opinion of Judge Pro).

Congress provided in the various Citizen Suit Provisions in environmental law statutory standing in District Court, 60 days after having served the EPA, however, Article III standing and the Supreme Court’s prudential standing requirements have become the controlling principles for actual access to the federal courts. Intervenors seem to be subject to the same standards which are growing more difficult with the present Supreme Court and those requirements should be applicable to District Courts eventually.

Michael Caplan


[1] Edward Hines Yellow Pine Trustees v. U.S. (1923) 263 U.S. 143

[2] Sierra Club v. Morton (1972) 405 U.S. 727, 735

[3] Sierra Club v. Morton (1972) 405 U.S. 727, 735

[4] Scenic Hudson Preservation Conference v. Federal Power Commission (2d Cir. 1965) 354 F.2d 608, 616

[5] Association of Data Processing Service Organizations, Inc. v. Camp (1970) 397 U.S. 150, 154

[6] School Dist. of Abington Tp., Pa. v. Schempp (1963) 374 U.S. 203, 267

[7] Order No. C 09-2292

[8] Order No. C 09-2292

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