Scenic Hudson and Storm King: Revolutionizing Standing in Environmental Litigation

With the frequency of environmental litigation today, we often take for granted important judicial advancements that helped facilitate successful environmental law claims. Standing, the right to bring suit, is a fundamental element of being able to bring a claim, yet it once stood in the way of citizens and environmental organizations who sued to protect the environment for non-economic reasons. Scenic Hudson Preservation Council v. the Federal Power Commission[1] and Sierra Club v. Morton[2] revolutionized environmental litigation by broadening the definition of “standing” in environmental lawsuits. It is because of the foundations  that these cases provided that environmental law is what it is today, and particularly why environmental law non-governmental organizations (“NGOs”) have been able to blossom as an important force in the environmental movement.

Scenic Hudson, also known as the Storm King case,was a U.S. Court of Appeals case from the second circuit that enabled citizens and citizen groups to bring lawsuits even when they incurred no direct economic harm. In 1962, power company Consolidated Edison (“Con-Ed”) came forward with a development plan for the third largest hydro-electric plant in the world to be built along the Hudson River on Storm King Mountain in New York.[3] Local citizens that opposed the plan mobilized to create the Scenic Hudson Preservation Council (“The Council”) as a way to voice their concerns.[4] The Council wanted to preserve citizens’ ability to use the mountain for recreational purposes and wished to preserve the Hudson River area both for its aesthetic integrity and for historical importance as an inspiration for many written and artistic works.

The Council ultimately decided that the best way to protect Storm King Mountain was to sue the Federal Power Commission (“FPC”) to prevent them from licensing Con-Ed’s project. The Council sued under Section 313(b) of the Federal Power Act,[5] which allows parties with grievances relating to FPC orders (which includes licenses) to have such orders reviewed by a federal court of appeals.[6] The act additionally empowers the Court of Appeals to order that the FPC conduct another hearing on the matter in question if an aggrieved party has “material” additional evidence where there were “reasonable grounds for failure to adduce such evidence” in prior Commission proceedings.[7]  The Council brought their claim to the Court of Appeals on the grounds that the FPC failed to consider all of the factors it was supposed to in its licensing decision pursuant to Section 10(a) of the Federal Power Act, which includes, “beneficial public uses, including recreational purposes.”[8] This language played a pivotal role in determining whether or not the Council had a valid claim of standing.

The Federal Power Commission argued that the Council lacked standing because “they ma[de] no claim of personal economic injury resulting from the Commission’s action.”[9] However, the Court broadly interpreted the language of 10(a) to include “the conservation of natural resources, the maintenance of natural beauty, and the preservation of historic sites.”[10] The Court noted that economic interest is not a necessary factor when a party has a “direct personal interest.”[11] The Court decided in favor of the Scenic Hudson Preservation Council, ordering the FPC to hold additional hearings to consider alternatives to the project and the “practicability” of the project, as well as listen to the Council’s complaints that were ignored in the prior proceedings.[12] The Court artfully noted, “the renewed proceedings must include as a basic concern the preservation of natural beauty and of national historic shrines, keeping in mind that, in our affluent society, the cost of a project is only one of several factors to be considered.”[13]

In drafting the opinion of Sierra Club v. Morton in 1972, the U.S. Supreme Court built upon Scenic Hudson by formally establishing the ability of citizens to sue for the protection of natural resources. The case arose when the U.S. Forest Service approved Walt Disney Corporation’s plan to purchase land in California’s Mineral King Valley to develop a ski resort. The Sierra Club filed suit to obtain an injunction, claiming standing under the Administrative Procedures Act Section 10, which stipulates: “A person suffering from a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute is entitled to judicial review thereof.”[14]

The case eventually made its way up to the Supreme Court, which decided that the Sierra Club lacked standing to sue.  Through their “injury in fact” test, the Court noted Sierra Club certainly had a legitimate reason to sue, but “failed to allege that it or its members would be affected in any of their activities or pastimes by the Disney development.”[15] That, as an environmental organization, Sierra Club had a “special interest” in conservation was not sufficient.[16]

Although the Sierra Club lost the case, they gained a win for the environmental movement. Adopting the logic of Scenic Hudson, the Court noted, “Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.”[17]The decision “reversed the FPC’s holding that one must have ‘personal economic injury’ to have standing.”[18]

The overall proposition that Scenic Hudson and Morton stand for is allowing citizen groups and NGOs to sue to protect the environment based on non-economic reasons when at least one of their members can be considered an aggrieved party – a party who not only has an interest but would actually suffer injury, whether aesthetically, recreationally, or otherwise. According to Justice Stewart, “It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review.”[19]

 

-Kate F. Lambert is a general member on MJEAL. She can be reached at katelamb@umich.edu

 


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan..

[1] Scenic Hudson Preservation Conference v. Fed. Power Com., 354 F.2d 608 (2d Cir. 1965)

[2] Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361 (1972)

[3] Frances F. Dunwell, The Hudson: America’s River, (2008) at 286.

[4] Wolfgang Saxon, Stephen Duggan, Environmentalist, Dies at 89, N.Y. Times, (Apr. 24, 1998), available at http://www.nytimes.com/1998/11/13/nyregion/stephen-duggan-environmentalist-dies-at-89.html

[5] Supra note 1 at 615.

[6] 16 U.S.C. § 825l(b) (1920)

[7] Id.

[8] 16 U.S.C. § 803(a) (1920)

[9] Supra note 1 at 615.

[10] Id. at 614.

[11] Id. at 615.

[12] Id. at 625.

[13] Id. at 624.

[14] 5 U. S. C. § 702 (1966)

[15] Supra note 2 at 735.

[16] Id. at 739.

[17] Id. at 736.

[18] James L. Oakes, Environmental Litigation: Current Developments and Suggestions for the Future. 5.4 Conn. L. Rev. 531, 532 (1973) available at <http://heinonline.org/HOL/Page?handle=hein.journals/conlr5&div=32&g_sent=1&collection=journals>.

[19] Supra note 2 at 739.

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