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Lujan vs. Defenders of Wildlife
Facts: The Secretary of Interior (Secretary) promulgated a rule
interpreting Section 7 of the Endangered Species Act (Act) as
applicable only to actions within the United States or on the high
seas. The Defenders of Wildlife (Respondents) filed this action
against the Secretary seeking a declaratory judgment that the new
regulation was in error as to the scope of Section 7 of the Act, and
an injunction requiring the Secretary to promulgate a new
regulation restoring its initial interpretation - that the obligations
imposed by the section extended to actions taken in foreign
nations. The Respondents contend that the non-application of the
Act outside US presents an injury to them because it prevents them
from visiting or seeing the animals when they visit foreign states
again. The District Court granted the Secretarys motion to dismiss
for lack of standing, and the Court of Appeals reversed and
remanded. On remand, the District Court denied the Secretarys
motion for summary judgment and ordered the Secretary to publish
a revised regulation. The Court of Appeals then affirmed.
Issue: Whether the respondents have legal standing
Held: No. Respondents had not made the requisite demonstration
of at least injury and redressability. The affidavits of two female
members submitted by Respondents contained no facts showing
how damage to the species would produce imminent injury. The
women had visited Egypt in the past, and hoped to again some
day. That was insufficient to support an injury-in-fact. The
agencies funding the projects were not parties to the case, so the
Court could only afford relief against the Secretary. This would only
remedy Respondents alleged injury if the funding agencies were
bound by the Secretarys regulations, which was questionable. A
further impediment to redressability was that the agencies
generally supplied only a fraction of the funding for a foreign
project, and Respondents produced nothing to indicate that the
projects named would be suspended or do less harm to the species
without that fractional contribution.
Three minimal elements in order to have standing. The plaintiff
must have suffered (i) an injury in fact; (ii) there must be a causal
connection between the injury and the conduct complained of; and
(iii) it must be likely that this injury will be redressed by a favorable
decision.
European Union: Treaty Article, 169 (infringement)
If the Commission considers that a Member State has failed to fulfil
an obligation under this Treaty, it shall deliver a reasoned opinion
on the matter after giving the State concerned the opportunity to
submit its observations.
If the State concerned does not comply with the opinion within the
period laid down by the Commission, the latter may bring the
matter before the Court of Justice
Article 263 (ECJ Jurisdiction)
The Court of Justice of the European Union shall review the legality
of legislative acts, of acts of the Council, of the Commission and of
the European Central Bank, other than recommendations and
opinions, and of acts of the European Parliament and of the
European Council intended to produce legal effects vis--vis third
parties. It shall also review the legality of acts of bodies, offices or
agencies of the Union intended to produce legal effects vis--vis
third parties.
It shall for this purpose have jurisdiction in actions brought by a
Member State, the European Parliament, the Council or the
Commission on grounds of lack of competence, infringement of an
essential procedural requirement, infringement of the Treaties or of
any rule of law relating to their application, or misuse of powers.
The Court shall have jurisdiction under the same conditions in
actions brought by the Court of Auditors, by the European Central
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Bank and by the Committee of the Regions for the purpose of
protecting their prerogatives.
Any natural or legal person may, under the conditions laid down in
the first and second paragraphs, institute proceedings against an
act addressed to that person or which is of direct and individual
concern to them, and against a regulatory act which is of direct
concern to them and does not entail implementing measures.
Acts setting up bodies, offices and agencies of the Union may lay
down specific conditions and arrangements concerning actions
brought by natural or legal persons against acts of these bodies,
offices or agencies intended to produce legal effects in relation to
them.
The proceedings provided for in this Article shall be instituted within
two months of the publication of the measure, or of its notification
to the plaintiff, or, in the absence thereof, of the day on which it
came to the knowledge of the latter, as the case may be.
European Community Environmental Law
Turner T. Smith Jr. and Roszell D. Hunter
Two most common forms of Community Legislation:
1. Regulations become law throughout the community as of
their effective date. Their provisions are directly and
generally enforceable in each member state according to
their terms; hence they mat create legal rights and
obligations without further national legislation Regulations
have direct effect and are as such, capable of creating
individual rights which national courts must protect.
2. Directives not directly and generally enforceable. They
set out goals for the member states to achieve through
implementing national legislation. A directive is binding, as
to the results to be achieved, upon each member state to
which it is addressed, but allows the national authorities the
choice of form and methods. Directives offer a flexible
legislative device for setting generic requirements that
member states can implement through national legislation
in accordance with national institutions and traditions.
Direct effect of directives:
Although in theory, only regulations are directly applicable
throughout the Community without further national
legislation, directives may also, even in the absence of
adequate implementing national legislation, directive may
also, even in the absence of adequate implementing
national legislation, create legal rights and obligations.
Directives are nonetheless binding on member states a
member state should not be able to avoid burden in
properly implementing a directive where the member state
itself has failed in its obligation to implement a directive.
Not every obligation set forth in a directive has direct
effects only provisions that are UNCONDITIONAL AND
SUFFICIENTLY PRECISE
o Thoroughly defined legal relationships
leaving the member state with no room for
choice in implementation and application
o A directives provisions may have direct
effects if it does not leave the member
states any margin of discretion in the
performance of their obligations.
With respect to direct effect doctrine, who may be vested with rights
against whom?
Were a member state has failed to implement adequately
a directive or has adopted measures not in conformity with
a directive, a person affected by that conduct may rely on
the directive as against the member state.
A directives binding nature exists only in relation to the
member state to whom it is addressed (cannot be invoked
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against another individual horizontal effect is
prohibited).
Consequences of direct effect
Community law, even when not adequately implemented
into national law, may have important implications for
private parties.
If there is no national law measure incorporating a
Community provision, the national authority must apply the
Community provision as if it had been properly
incorporated.
Where national provisions contradict the Community law,
the national provisions must be set aside and the
Community requirements applied
A national authority must apply the Community law
provision even if it may affect the interests of individuals
and failure to apply Community provisions may render the
national authority's actions unlawful.
Depending on national law, it may be possible for
individuals and interest groups to compel the national
authorities to apply the Community provisions, which may
in turn affect the interest of, for example, a company
holding a permit or seeking a prior authorization.
Enforcement tools complaints and article 169 proceeding
Complaints by individuals to the Commission regarding
infringements of Community law are, at present,
instrumental in the enforcement of Community law.
Administrative procedure for complaints:
o Commission receives a complaint
o Commission informs the complainant,
whose identity is confidential, that the
complaint has been entered in the
commissions complaint register.
o Commission requests from the member
state the factual and legal information
necessary to assess the complaint.
o If the Commission deems it necessary to
carry out an inspection, Commission
officials, with the consent of the member
state officials, make an on-the-spot check.
o The Commission may obtain its own
"experts' opinions" and may request the
submission of documents.
o Once factual issues have been clarified,
the Commission decides whether to
commence the formalized administrative
process leading to an action before the
Court of Justice, or to discontinue the
investigation.
o The complainant is notified of the
Commission's decision.
Formal infringement procedure:
o Letter of formal notice - If the Commission is of the
view that a member state is failing to fulfill its
obligations under the Treaty, the Commission may
send a formal letter of notice specifying the issues
of contention. It is intended to afford the member
state the opportunity to explain its conduct or
legislation, and to give the Commission a chance
to convince the member state to correct its errors.
o Reasoned opinion - If the dispute is not resolved to
the Commission's satisfaction on the basis of the
letter of notice, the Commission may then prepare
a reasoned opinion, setting forth definitively its
legal position. The reasoned opinion specifies the
Commission's views on how Community law is
being infringed and sets forth the Commission's
rationale.
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o Application to the court of justice - Should the
dispute still not be resolved to the Commission's
satisfaction, the Commission may make an
application to the Court of Justice.
R. v. Inspectorate ex parte Greenpeace (UK)
Facts: A company, BNFL, which reprocessed spent nuclear fuel,
was authorized by the respondent government departments to
discharge liquid and gaseous radioactive waste from its premises
under authorizations granted pursuant to Radioactive Substances
Act 1960. In 1992 BNFL applied for new authorizations to include
the proposed operation of its new thermal oxide reprocessing plant.
Pending the grant of the new authorizations, BNFL also applied for
and obtained a variation of the existing authorizations to enable it
to test the new plant before it became fully operational.
An environmental protection organization (Greenpeace) with an
international standing was concerned about the levels of
radioactive discharge from the site and applied for judicial review
by way of an order of certiorari to quash the respondents' decision
to vary the existing authorizations and an injunction to stay the
implementation of the varied authorizations, which would halt the
proposed testing of the new plant pending a decision on BNFL's
main application. The applicant, which had 2,500 supporters in the
area where the plant was situated, contended (i) that the variations
were unlawful since they concerned an operation which was
different in description and kind from that for which the original
authorizations had been granted and, as such, they constituted an
anticipation of new authorizations not yet granted (ii) that the
respondents' decision not to consider the justification for the tests
in the light of the emissions of radioactivity entailed in the running
and decontaminating of the plant was impeachable, given their
obligation under the 1960 Act and art 6 of Council Directive to
ensure that the process for which the variation was sought was
justified in terms of its overall benefits and the point that, if the main
authorizations were ultimately refused, the testing would have
been carried out without any justification. The respondents
contended that s 6(1) of the 1960 Act, as amplified by s 8(4),
permitted BNFL to dispose of any radioactive waste from its
premises and permitted variation of the original authorizations to
allow the testing process to take place.
BNFL contended that the applicant had failed to establish a
'sufficient interest in the matter' to which the application related and
accordingly had no locus standi to make the application.
Held: When deciding whether an applicant for judicial review had
a sufficient interest in the matter to which the application related,
the court hearing the substantive application should take into
account, in the exercise of its discretion, the nature of the applicant,
the extent of his interest in the issues raised, the remedy which he
sought to achieve and the nature of the relief sought.
Having regard to the fact that the applicant was an entirely
responsible and respected body with a genuine interest in the
issues raised, that it had 2,500 supporters in the area where the
plant was situated, who might not otherwise have an effective
means of bringing their concerns before the court if the applicant
were denied locus standi, that the primary relief sought was an
order of certiorari and not mandamus, which, even if granted,
would still leave the question of an injunction to stop the testing
process pending determination of the main issues in the discretion
of the court and that the applicant had been actively involved in the
consultation process relating to BNFL's application to operate the
new plant, it was clear that the applicant had a 'sufficient interest in
the matter' to be granted locus standi
Greenpeace International has also been accredited with
consultative status with the United Nations Economic and Social
Council (including United Nations General Assembly). It has
accreditation status with the United Nations Conference on
Environment and Development. They have observer status or the
right to attend meetings of 17 named bodies including (Paris
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Convention for the Prevention of Marine Pollution from Land Based
Sources).
What is the Aarhus Convention?
The United Nations Economic Commission for Europe (UNECE)
Convention on Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental Matters
was adopted on 25 June 1998 in the Danish city of Aarhus (rhus)
at the Fourth Ministerial Conference as part of the "Environment
for Europe" process. It entered into force on 30 October 2001.
The Aarhus Convention establishes a number of rights of the public
(individuals and their associations) with regard to the environment.
The Parties to the Convention are required to make the necessary
provisions so that public authorities (at national, regional or local
level) will contribute to these rights to become effective. The
Convention provides for:
1. the right of everyone to receive environmental information
that is held by public authorities ("access to
environmental information"). This can include
information on the state of the environment, but also on
policies or measures taken, or on the state of human health
and safety where this can be affected by the state of the
environment. Applicants are entitled to obtain this
information within one month of the request and without
having to say why they require it. In addition, public
authorities are obliged, under the Convention, to actively
disseminate environmental information in their possession;
2. the right to participate in environmental decision-making.
Arrangements are to be made by public authorities to
enable the public affected and environmental non-
governmental organisations to comment on, for example,
proposals for projects affecting the environment, or plans
and programmes relating to the environment, these
comments to be taken into due account in decision-making,
and information to be provided on the final decisions and
the reasons for it ("public participation in environmental
decision-making")
3. the right to review procedures to challenge public decisions
that have been made without respecting the two
aforementioned rights or environmental law in general
("access to justice").
Standing to litigate abstract social interests in the US and
Italy: Reexamining injury in fact
Douglas L. Parker
Common law standing in the federal courts
Where an organization wishes to be a plaintiff, it will have
standing to sue on behalf of its members (associational
standing) if:
o Its members would have standing to sue in their
own right
o The interests it seeks to protect are germane to the
organizations purpose
o Neither the claim asserted nor the relief requested
requires the participation of individual members in
the lawsuit.
In some circumstances, organizations also have the right
to sue on their own behalf, independent of the interests of
their members (organizational standing) if:
o The organization shows some concrete injury to its
own interest
o It is not enough for the organization to allege an
injury to abstract social interests
Two requirements for standing
1. Injury
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2. redressability