Lujan, Secretary of the Interior v. Defenders of Wildlife


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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), as amended. The ESA instructs the Secretary of the Interior to create a list of those species that are either endangered or threatened and to define the critical habitat of these species. The act then commands the following:

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 . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.     

In 1978, the Secretary of the Interior and the Secretary of Commerce promulgated a joint regulation stating that the obligations imposed by the act extend to actions taken in foreign nations. The next year, however, the Interior Department reinterpreted the act to require consultation only for actions taken in the United States or on the high seas.

The respondents in this case—organizations dedicated to wildlife conservation and other environmental causes—filed suit against the Secretary of the Interior, asking the court to require the Secretary to restore the initial interpretation of the act. A U.S. district court dismissed the suit for lack of standing, but the court of appeals reversed.


JUSTICE SCALIA announced the judgment of the Court and delivered the opinion of the Court.

[S]etting apart the “Cases” and “Controversies” that are of the justiciable sort referred to in Article III—“serv[ing] to identify those disputes which are appropriately resolved through the judicial process,”—is the doctrine of standing. Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”

The party invoking federal jurisdiction bears the burden of establishing these elements. [E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i e., with the manner and degree of evidence required at the successive stages of the litigation.

Respondents had not made the requisite demonstration of (at least) injury and redressability.

Respondents’ claim to injury is that the lack of consultation with respect to certain funded activities abroad “increas[es] the rate of extinction of endangered and threatened species.” Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing. See, e.g., Sierra Club vMorton. “But the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” . . . [R]espondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents’ members would thereby be “directly” affected apart from their “‘special interest’ in th[e] subject.”

With respect to this aspect of the case, the Court of Appeals focused on the affidavits of two Defenders’ members—Joyce Kelly and Amy Skilbred. Ms. Kelly stated that she traveled to Egypt in 1986 and “observed the traditional habitat of the endangered Nile crocodile there and intend[s] to do so again, and hope[s] to observe the crocodile directly,” and that she “will suffer harm in fact as the result of [the] American . . . role . . . in overseeing the rehabilitation of the Aswan High Dam on the Nile . . . and [in] develop[ing] . . . Egypt’s . . . Master Water Plan.” Ms. Skilbred averred that she traveled to Sri Lanka in 1981 and “observed th[e] habitat” of “endangered species such as the Asian elephant and the leopard” at what is now the site of the Mahaweli project funded by the Agency for International Development (AID), although she “was unable to see any of the endangered species”; “this development project,” she continued, “will seriously reduce endangered, threatened, and endemic species habitat including areas that I visited . . . [which] may severely shorten the future of these species”; that threat, she concluded, harmed her because she “intend[s] to return to Sri Lanka in the future and hope[s] to be more fortunate in spotting at least the endangered elephant and leopard.” When Ms. Skilbred was asked at a subsequent deposition if and when she had any plans to return to Sri Lanka, she reiterated that “I intend to go back to Sri Lanka,” but confessed that she had no current plans: “I don’t know [when]. There is a civil war going on right now. I don’t know. Not next year, I will say. In the future.”

We shall assume for the sake of argument that these affidavits contain facts showing that certain agency-funded projects threaten listed species—though that is questionable. They plainly contain no facts, however, showing how damage to the species will produce “imminent” injury to Mses. Kelly and Skilbred. That the women “had visited” the areas of the projects before the projects commenced proves nothing. . . . And the affiants’ profession of an “inten[t]” to return to the places they had visited before—where they will presumably, this time, be deprived of the opportunity to observe animals of the endangered species—is simply not enough. Such “someday” intentions—without any description of concrete plans, or indeed even any specification of when the someday will be—do not support a finding of the “actual or imminent” injury that our cases require. . . .

Besides failing to show injury, respondents failed to demonstrate redressability. Instead of attacking the separate decisions to fund particular projects allegedly causing them harm, respondents chose to challenge a more generalized level of Government action (rules regarding consultation), the invalidation of which would affect all overseas projects. This programmatic approach has obvious practical advantages, but also obvious difficulties insofar as proof of causation or redressability is concerned.

The most obvious problem in the present case is redressability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents’ alleged injury unless the funding agencies were bound by the Secretary’s regulation, which is very much an open question. . . .

A further impediment to redressability is the fact that the agencies generally supply only a fraction of the funding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweli project. Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. [I]t is entirely conjectural whether the non-agency activity that affects respondents will be altered or affected by the agency activity they seek to achieve. . . .

We hold that respondents lack standing to bring this action. . . . The opinion of the Court of Appeals is hereby reversed, and the cause is remanded for proceedings consistent with this opinion.


JUSTICE 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 that, on the record before us, respondents have failed to demonstrate that they themselves are “among the injured.”

This component of the standing inquiry is not satisfied unless “[p]laintiffs . . . demonstrate a ‘personal stake in the outcome.’” . . . Abstract injury is not enough.

While it may seem trivial to require that Mses. Kelly and Skilbred acquire airline tickets to the project sites or announce a date certain upon which they will return, this is not a case where it is reasonable to assume that the affiants will be using the sites on a regular basis, nor do the affiants claim to have visited the sites since the projects commenced.   

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.


JUSTICE BLACKMUN, with whom JUSTICE O’CONNOR joins, dissenting.

I believe that respondents have raised genuine issues of fact . . . both as to injury and as to redressability. . . .

I think a reasonable finder of fact could conclude from the information in the affidavits and deposition testimony that either Kelly or Skilbred will soon return to the project sites, thereby satisfying the “actual or imminent” injury standard. The Court dismisses Kelly’s and Skilbred’s general statements that they intended to revisit the project sites as “simply not enough.” But those statements did not stand alone. A reasonable finder of fact could conclude, based not only upon their statements of intent to return, but upon their past visits to the project sites, as well as their professional backgrounds, that it was likely that Kelly and Skilbred would make a return trip to the project areas. Contrary to the Court’s contention that Kelly’s and Skilbred’s past visits “prov[e] nothing,” the fact of their past visits could demonstrate to a reasonable factfinder that Kelly and Skilbred have the requisite resources and personal interest in the preservation of the species endangered by the Aswan and Mahaweli projects to make good on their intention to return again. Similarly, Kelly’s and Skilbred’s professional backgrounds in wildlife preservation, also make it likely—at least far more likely than for the average citizen—that they would choose to visit these areas of the world where species are vanishing.

By requiring a “description of concrete plans” or “specification of when the someday [for a return visit] will be,” the Court, in my view, demands what is likely an empty formality. No substantial barriers prevent Kelly or Skilbred from simply purchasing plane tickets to return to the Aswan and Mahaweli projects. This case differs from other cases in which the imminence of harm turned largely on the affirmative actions of third parties beyond a plaintiff’s control. See Los Angeles vLyons (harm dependent on police’s arresting plaintiff again and subjecting him to chokehold). To be sure, a plaintiff ’s unilateral control over his or her exposure to harm does not necessarily render the harm nonspeculative. Nevertheless, it suggests that a finder of fact would be far more likely to conclude the harm is actual or imminent, especially if given an opportunity to hear testimony and determine credibility. . . .

A plurality of the Court suggests that respondents have not demonstrated redressability: a likelihood that a court ruling in their favor would remedy their injury. The plurality identifies two obstacles. The first is that the “action agencies” (e.g., AID) cannot be required to undertake consultation with petitioner Secretary, because they are not directly bound as parties to the suit and are otherwise not indirectly bound by being subject to petitioner Secretary’s regulation. Petitioner, however, officially and publicly has taken the position that his regulations regarding consultation under § 7 of the Act are binding on action agencies. . . .

The second redressability obstacle relied on by the plurality is that “the [action] agencies generally supply only a fraction of the funding for a foreign project.” What this Court might “generally” take to be true does not eliminate the existence of a genuine issue of fact. . . . Even if the action agencies supply only a fraction of the funding for a particular foreign project, it remains at least a question for the finder of fact whether threatened withdrawal of that fraction would affect foreign government conduct sufficiently to avoid harm to listed species. . . .

In conclusion, I cannot join the Court on what amounts to a slash-and-burn expedition through the law of environmental standing. In my view, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury vMadison (1803).

I dissent.