Defenders of Wildlife (No. 90-1424)Argued: Dec. 3, 1992Decided: June 12, 1992. Syllabus.SyllabusSection 7(a)(2) of the Endangered Species Act of 1973 divides responsibilities regarding the protection of endangered species between petitioner Secretary of the Interior and the Secretary of Commerce, and requires each federal agency to consult with the relevant Secretary to ensure that any action funded by the agency is not likely to jeopardize the continued existence or habitat of any endangered or threatened species.
Both Secretaries initially promulgated a joint regulation extending § 7(a)(2)'s coverage to actions taken in foreign nations, but a subsequent joint rule limited the section's geographic scope to the United States and the high seas. Respondents, wildlife conservation and other environmental organizations, filed an action in the District Court, seeking a declaratory judgment that the new regulation erred as to § 7(a)(2)'s geographic scope, and an injunction requiring the Secretary of the Interior to promulgate a new rule restoring his initial interpretation. The Court of Appeals reversed the District Court's dismissal of the suit for lack of standing.
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Upon remand, on cross-motions for summary judgment, the District Court denied the Secretary's motion, which renewed his objection to standing, and granted respondents' motion, ordering the Secretary to publish a new rule. The Court of Appeals affirmed.Held: The judgment is reversed, and the case is remanded.911 F.2d 117, (CA 8 1990), reversed and remanded.JUSTICE SCALIA delivered the opinion of the Court, except as to Part III-B, concluding that respondents lack standing to seek judicial review of the rule. 559-567, 571-578.(a) As the parties invoking federal jurisdiction, respondents bear the burden of showing standing by establishing, inter alia, that they have suffered an injury in fact, i.e., a concrete and particularized, actual or imminent invasion of a legally-protected interest. To survive a summary judgment motion, they must set forth by affidavit or other evidence specific facts to support their claim. Standing is particularly difficult to show here, since third parties, rather than respondents, are the object of the Government action or inaction to which respondents object. 559-562.(b) Respondents did not demonstrate that they suffered an injury in fact.
Assuming that they established that funded activities abroad threaten certain species, they failed to show that one or more of their members would thereby be directly affected apart from the members' special interest in the subject. See Sierra Club v. Morton, 735.
Affidavits of members claiming an intent to revisit project sites at some indefinite future time, at which time they will presumably be denied the opportunity to observe endangered animals, do not suffice, for they do not demonstrate an 'imminent' injury. Respondents also mistakenly rely on a number of other novel standing theories. Their theory that any person using any part of a contiguous ecosystem adversely affected by a funded activity has standing even if the activity is located far away from the area of their use is inconsistent with this Court's opinion in Lujan v. National Wildlife Federation,.
And they state purely speculative, nonconcrete injuries when they argue that suit can be brought by anyone with an interest in studying or seeing endangered animals anywhere on the globe and anyone with a professional interest in such animals. 562-567.(c) The Court of Appeals erred in holding that respondents had standing on the ground that the statute's citizen-suit provision confers on all persons the right to file suit to challenge the Secretary's failure to follow the proper consultative procedure, notwithstanding their inability to allege any separate concrete injury flowing from that failure. This Court has consistently held that a plaintiff claiming only a generally available grievance about government, unconnected with a threatened concrete interest of his own, does not state an Article III case or controversy. See, e.g., Fairchild v. Hughes, 129-130. Vindicating the public interest is the function of the Congress and the Chief Executive.
To allow that interest to be converted into an individual right by a statute denominating it as such and permitting all citizens to sue, regardless of whether they suffered any concrete injury, would authorize Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed,' Art. 571-578.SCALIA, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, in which REHNQUIST, C.J., and WHITE, KENNEDY, SOUTER, and THOMAS, JJ., joined, and an opinion with respect to Part III-B, in which REHNQUIST, C.J., and WHITE and THOMAS, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which SOUTER, J., joined, post, p. STEVENS, J., filed an opinion concurring in the judgment, post, p. BLACKMUN, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p.
OpinionSCALIA, J., Opinion of the CourtJUSTICE SCALIA delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, and an opinion with respect to Part III-B in which the CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE THOMAS join.This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting § 7 of the Endangered Species Act of 1973 (ESA), 87 Stat. 884, 892, as amended, in such fashion as to render it applicable only to actions within the United States or on the high seas. The preliminary issue, and the only one we reach, is whether the respondents here, plaintiffs below, have standing to seek judicial review of the rule.IThe ESA, 87 Stat. 884, as amended, et seq., seeks to protect species of animals against threats to their continuing existence caused by man.
See generally TVA v. Hill, (1978). The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species which are either endangered or threatened under enumerated criteria, and to define the critical habitat of these species.
Section 7(a)(2) of the Act then provides, in pertinent part:Each Federal agency shall, in consultation with and with the assistance of the Secretary of the Interior, insure that any action authorized, funded, or carried out by such agency. ConcurrenceKENNEDY, J., Concurring OpinionJUSTICE KENNEDY, with whom JUSTICE SOUTER joins, concurring in part and concurring in the judgment.Although I agree with the essential parts of the Court's analysis, I write separately to make several observations.I agree with the Court's conclusion in Part III-A that, on the record before us, respondents have failed to demonstrate that they themselves are 'among the injured.' Sierra Club v. Morton, 735 (1972). This component of the standing inquiry is not satisfied unlessplaintiffs. Demonstrate a 'personal stake in the outcome.' Abstract injury is not enough.
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The plaintiff must show that he 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged official conduct, and the injury or threat of injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical.' Los Angeles v. Lyons, 101-102 (1983) (citations omitted).While it may seem trivial to require that Mss. Kelly and Skilbred acquire airline tickets to the project sites or announce a date certain upon which they will return, see ante at 564, this is not a case where it is reasonable to assume that the affiants will be using the sites on a regular basis, see Sierra Club v.
Morton, supra, 405 U.S. 8, nor do the affiants claim to have visited the sites since the projects commenced. With respect to the Court's discussion of respondents' 'ecosystem nexus,' 'animal nexus,' and 'vocational nexus' theories, ante at 565-567, I agree that, on this record, respondents' showing is insufficient to establish standing on any of these bases. I am not willing to foreclose the possibility, however, that, in different circumstances, a nexus theory similar to those proffered here might support a claim to standing. See Japan Whaling Assn. American Cetacean Soc., 231, n.
4 (1986) ('respondents. Undoubtedly have alleged a sufficient ‘injury in fact' in that the whalewatching and studying of their members will be adversely affected by continued whale harvesting').In light of the conclusion that respondents have not demonstrated a concrete injury here sufficient to support standing under our precedents, I would not reach the issue of redressability that is discussed by the plurality in Part III-B.I also join Part IV of the Court's opinion with the following observations. As government programs and policies become more complex and far-reaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common law tradition.
Modern litigation has progressed far from the paradigm of Marbury suing Madison to get his commission, Marbury v. Madison, 1 Cranch 137 (1803), or Ogden seeking an injunction to halt Gibbons' steamboat operations. Ogden, 9 Wheat. In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court's opinion to suggest a contrary view. Seldin, 500 (1975); ante at 578.
In exercising this power, however, Congress must, at the very least, identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit. The citizen-suit provision of the Endangered Species Act does not meet these minimal requirements, because, while the statute purports to confer a right onany person. The United States and any other governmental instrumentality or agency. Who is alleged to be in violation of any provision of this chapter,it does not, of its own force, establish that there is an injury in 'any person' by virtue of any 'violation.' (g)(1)(A).The Court's holding that there is an outer limit to the power of Congress to confer rights of action is a direct and necessary consequence of the case and controversy limitations found in Article III. I agree that it would exceed those limitations if, at the behest of Congress and in the absence of any showing of concrete injury, we were to entertain citizen suits to vindicate the public's nonconcrete interest in the proper administration of the laws.
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While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way. This requirement is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and thatthe legal questions presented. Will be resolved, not in the rarefied atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 472 (1982).
In addition, the requirement of concrete injury confines the Judicial Branch to its proper, limited role in the constitutional framework of government.An independent judiciary is held to account through its open proceedings and its reasoned judgments. In this process, it is essential for the public to know what persons or groups are invoking the judicial power, the reasons that they have brought suit, and whether their claims are vindicated or denied. DissentBLACKMUN, J., Dissenting OpinionJUSTICE BLACKMUN, with whom JUSTICE O'CONNOR joins, dissenting.I part company with the Court in this case in two respects. First, I believe that respondents have raised genuine issues of fact - sufficient to survive summary judgment - both as to injury and as to redressability. Second, I question the Court's breadth of language in rejecting standing for 'procedural' injuries. I fear the Court seeks to impose fresh limitations on the constitutional authority of Congress to allow citizen-suits in the federal courts for injuries deemed 'procedural' in nature.
I dissent.IArticle III of the Constitution confines the federal courts to adjudication of actual 'cases' and 'controversies.' To ensure the presence of a 'case' or 'controversy,' this Court has held that Article III requires, as an irreducible minimum, that a plaintiff allege (1) an injury that is (2) 'fairly traceable to the defendant's allegedly unlawful conduct' and that is (3) 'likely to be redressed by the requested relief.' Wright, 751 (1984).ATo survive petitioner's motion for summary judgment on standing, respondents need not prove that they are actually or imminently harmed.
They need show only a 'genuine issue' of material fact as to standing. Fed.Rule Civ.Proc. This is not a heavy burden. A 'genuine issue' exists so long as 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party respondents.' Liberty Lobby, Inc., 248 (1986). This Court'sfunction is not itself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.Id.
At 249.The Court never mentions the 'genuine issue' standard. Rather, the Court refers to the type of evidence it feels respondents failed to produce, namely, 'affidavits or other evidence showing, through specific facts' the existence of injury.