OCTOBER TERM, 1991
Syllabus
LUJAN, SECRETARY OF THE INTERIOR
v.
DEFENDERS OF WILDLIFE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 90-1424. Argued December 3, 1991-Decided June 12, 1992
Section 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. 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, 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. Pp. 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.
Pp. 559-562.
556
Syllabus
(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, 405 U. S. 727, 735, 739.
Mfidavits 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, 497 U. S. 871. 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. pp. 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, 258 U. S. 126, 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. II, § 3. Pp. 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. 579.
STEVENS, J., filed an opinion concurring in the judgment,
post,
557
p. 581. BLACKMUN, J., filed a dissenting opinion, in which
O'CONNOR, J., joined,
post, p. 589.
Edwin S. Kneedler argued the cause for petitioner. With him on
the briefs were Solicitor General Starr, Acting Assistant Attorney
General Hartman, Deputy Solicitor General Wallace, Robert L.
Klarquist, David C. Shilton, Thomas L. Sansonetti, and Michael
Young.
Brian B. O'Neill argued the cause for respondents. With
him on the brief were
Steven C.
Schroer and
Richard A. Duncan. *
JUSTICE 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
*Terence P. Ross, Daniel J. Popeo, and
Richard A. Samp filed a brief for the Washington Legal
Foundation et al. as
amici curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the City of Austin et al. by
William A. Butler, Angus E. Crane,
Michael J. Bean, Kenneth Oden, James M.
McCormack, and
Wm. Robert Irvin; for the American
Association of Zoological Parks & Aquariums et al. by
Ronald J. Greene and
W Hardy Callcott;
for the American Institute of Biological Sciences by
Richard
J. Wertheimer and
Charles M. Chambers; and for
the Ecotropica Foundation of Brazil et al. by
Durwood
J. Zaelke.
A brief of
amici curiae was filed for the State of Texas
et al. by
Patrick J. Mahoney, Dan Morales,
Attorney General of Texas,
Will Pryor, First Assistant
Attorney General,
Mary F.
Keller, Deputy Attorney
General, and
Nancy N. Lynch, Mary Ruth Holder, and
Shannon J. Kilgore, Assistant Attorneys
General,
Grant Woods, Attorney General of Arizona,
Winston Bryant, Attorney General of Arkansas,
Daniel E.
Lungren, Attorney General of California,
Robert A.
Butterworth, Attorney General of Florida,
Michael E.
Carpenter, Attorney General of Maine,
Frank J.
Kelley, Attorney General of Michigan,
Hubert H. Humphrey
III, Attorney General of Minnesota,
Robert J.
Del Tufo, Attorney General of New Jersey,
Robert
Abrams, Attorney General of New York,
Lee Fisher,
Attorney General of Ohio, and
Jeffrey L. Amestoy, Attorney
General of Vermont,
Victor A. Kovner, Leonard J.
Koerner, Neal M. Janey, and
Louise H. Renne.
558
Species Act of 1973 (ESA), 87 Stat. 892, as amended, 16 U. S. C.
§ 1536, 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 respondents here,
plaintiffs below, have standing to seek judicial review of the
rule.
I
The ESA, 87 Stat. 884, as amended, 16 U. S. C. § 1531
et
seq., seeks to protect species of animals against threats to their
continuing existence caused by man. See generally
TVA v.
Hill, 437 U.
S. 153 (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. 16 U. S. C. §§ 1533,
1536. 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 ... 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." 16 U. S. C. § 1536(a)(2).
In 1978, the Fish and Wildlife Service (FWS) and the N ational
Marine Fisheries Service (NMFS), on behalf of the Secretary of the
Interior and the Secretary of Commerce respectively, promulgated a
joint regulation stating that the obligations imposed by § 7(a)(2)
extend to actions taken in foreign nations. 43 Fed. Reg. 874
(1978). The next year, however, the Interior Department began to
reexamine its position. Letter from Leo Kuliz, Solicitor,
Department of the Interior, to Assistant Secretary, Fish and
Wildlife and Parks, Aug. 8, 1979. A revised joint regulation,
reinterpret-
559
ing § 7(a)(2) to require consultation only for actions taken in
the United States or on the high seas, was proposed in 1983, 48
Fed. Reg. 29990, and promulgated in 1986, 51 Fed. Reg. 19926; 50
CFR 402.01 (1991).
Shortly thereafter, respondents, organizations dedicated to
wildlife conservation and other environmental causes, filed this
action against the Secretary of the Interior, seeking a declaratory
judgment that the new regulation is in error as to the geographic
scope of § 7(a)(2) and an injunction requiring the Secretary to
promulgate a new regulation restoring the initial interpretation.
The District Court granted the Secretary's motion to dismiss for
lack of standing.
Defenders of Wildlife v.
Hodel, 658
F. Supp. 43, 47-48 (Minn. 1987). The Court of Appeals for the
Eighth Circuit reversed by a divided vote.
Defenders of
Wildlife v.
Hodel, 851 F.2d
1035 (1988). On remand, the Secretary moved for summary
judgment on the standing issue, and respondents moved for summary
judgment on the merits. The District Court denied the Secretary's
motion, on the ground that the Eighth Circuit had already
determined the standing question in this case; it granted
respondents' merits motion, and ordered the Secretary to publish a
revised regulation.
Defenders of Wildlife v.
Hodel,
707 F. Supp. 1082 (Minn. 1989). The Eighth Circuit affirmed.
911 F.2d
117 (1990). We granted certiorari, 500 U. S. 915 (1991).
II
While the Constitution of the United States divides all power
conferred upon the Federal Government into "legislative Powers,"
Art. I, § 1, "[t]he executive Power," Art. II, § 1, and "[t]he
judicial Power," Art. III, § 1, it does not attempt to define those
terms. To be sure, it limits the jurisdiction of federal courts to
"Cases" and "Controversies," but an executive inquiry can bear the
name "case" (the Hoffa case) and a legislative dispute can bear the
name "controversy" (the Smoot-Hawley controversy). Obviously, then,
the Constitution's central mechanism of separation of powers
de-
560
pends largely upon common understanding of what activities are
appropriate to legislatures, to executives, and to courts. In The
Federalist No. 48, Madison expressed the view that "[i]t is not
infrequently a question of real nicety in legislative bodies
whether the operation of a particular measure will, or will not,
extend beyond the legislative sphere," whereas "the executive power
[is] restrained within a narrower compass and ... more simple in
its nature," and "the judiciary [is] described by landmarks still
less uncertain." The Federalist No. 48, p. 256 (Carey and McClellan
eds. 1990). One of those landmarks, setting 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,"
Whitmore v.
Arkansas, 495 U. S. 149, 155
(1990)-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. See,
e. g., Allen v.
Wright, 468 U. S. 737, 751
(1984).
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, see
id., at 756;
Warth v.
Seldin, 422 U.
S. 490, 508 (1975);
Sierra Club v.
Morton, 405 U.
S. 727, 740-741, n. 16 (1972); 1 and (b) "actual or imminent, not
'conjectural' or 'hypothetical,'"
Whitmore, supra, at 155
(quoting
Los Angeles v.
Lyons, 461 U. S. 95,102 (1983)).
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 ...
thee] result [of] the independent action of some third party not
before the court."
Simon v.
Eastern Ky. Welfare
1 By particularized, we mean that the injury must affect the
plaintiff in a personal and individual way.
561
Rights Organization, 426 U. S. 26, 41-42
(1976). Third, it must be "likely," as opposed to merely
"speculative," that the injury will be "redressed by a favorable
decision."
Id., at 38, 43.
The party invoking federal jurisdiction bears the burden of
establishing these elements. See
FW/PBS, Inc. v.
Dallas, 493 U.
S. 215, 231 (1990);
Warth, supra, at 508. Since they are
not mere pleading requirements but rather an indispensable part of
the plaintiff's case, each 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. See
Lujan v.
National Wildlife Federation, 497 U. S. 871, 883-889
(1990);
Gladstone, Realtors v.
Village of Bellwood,
441 U. S. 91,
114-115, and n. 31 (1979);
Simon, supra, at 45, n. 25;
Warth, supra, at 527, and n. 6 (Brennan, J., dissenting). At
the pleading stage, general factual allegations of injury resulting
from the defendant's conduct may suffice, for on a motion to
dismiss we "presum[e] that general allegations embrace those
specific facts that are necessary to support the claim."
National Wildlife Federation, supra, at 889. In response to
a summary judgment motion, however, the plaintiff can no longer
rest on such "mere allegations," but must "set forth" by affidavit
or other evidence "specific facts," Fed. Rule Civ. Proc. 56(e),
which for purposes of the summary judgment motion will be taken to
be true. And at the final stage, those facts (if controverted) must
be "supported adequately by the evidence adduced at trial."
Gladstone, supra, at 115, n. 31.
When the suit is one challenging the legality of government
action or inaction, the nature and extent of facts that must be
averred (at the summary judgment stage) or proved (at the trial
stage) in order to establish standing depends considerably upon
whether the plaintiff is himself an object of the action (or
forgone action) at issue. If he is, there is ordinarily little
question that the action or inaction has
562
caused him injury, and that a judgment preventing or requiring
the action will redress it. When, however, as in this case, a
plaintiff's asserted injury arises from the government's allegedly
unlawful regulation (or lack of regulation) of
someone else,
much more is needed. In that circumstance, causation and
redressability ordinarily hinge on the response of the regulated
(or regulable) third party to the government action or inaction-and
perhaps on the response of others as well. The existence of one or
more of the essential elements of standing "depends on the
unfettered choices made by independent actors not before the courts
and whose exercise of broad and legitimate discretion the courts
cannot presume either to control or to predict,"
ASARCO Inc.
v.
Kadish, 490
U. S. 605, 615 (1989) (opinion of KENNEDY, J.); see also
Simon, supra, at 41-42; and it becomes the burden of the
plaintiff to adduce facts showing that those choices have been or
will be made in such manner as to produce causation and permit
redressability of injury.
E. g., Warth, supra, at 505. Thus,
when the plaintiff is not himself the object of the government
action or inaction he challenges, standing is not precluded, but it
is ordinarily "substantially more difficult" to establish.
Allen, supra, at 758;
Simon, supra, at 44-45;
Warth, supra, at 505.
III
We think the Court of Appeals failed to apply the foregoing
principles in denying the Secretary's motion for summary judgment.
Respondents had not made the requisite demonstration of (at least)
injury and redressability.
A
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."
Complaint' 5, App. 13. Of course, the desire to use or observe an
animal species, even for purely esthetic purposes, is undeniably a
cognizable interest for purpose of
563
standing. See,
e. g., Sierra Club v.
Morton, 405
U. S., at 734. "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."
Id., at 734-735. To
survive the Secretary's summary judgment motion, respondents 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 thee] subject."
Id., at
735, 739. See generally
Hunt v.
Washington State Apple
Advertising Comm'n, 432 U. S. 333, 343
(1977).
With respect to this aspect of the case, the Court of Appeals
focused on the affidavits of two Defenders' membersJoyce 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." App. 101. Ms.
Skilbred averred that she traveled to Sri Lanka in 1981 and
"observed thee] 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."
Id., at 145-146. When Ms. Skilbred was asked
564
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."
Id.,
at 318.
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. As we have said in a related context, "'Past
exposure to illegal conduct does not in itself show a present case
or controversy regarding injunctive relief ... if unaccompanied by
any continuing, present adverse effects.'"
Lyons, 461 U. S.,
at 102 (quoting
O'Shea v.
Littleton, 414 U. S. 488, 495-496
(1974)). 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 "some day"
intentions-without any description of concrete plans, or indeed
even any specification of
when the some day will be-do not
support a finding of the "actual or imminent" injury that our cases
require. See
supra, at 560.2
2 The dissent acknowledges the settled requirement that the
injury complained of be, if not actual, then at least
imminent, but it contends that respondents could get past
summary judgment because "a reasonable finder of fact could
conclude ... that ... Kelly or Skilbred will soon return to the
project sites."
Post, at 591. This analysis suffers either
from a factual or from a legal defect, depending on what the "soon"
is supposed to mean. If "soon" refers to the standard mandated by
our precedentsthat the injury be "imminent,"
Whitmore v.
Arkansas, 495
U. S. 149, 155 (1990)-we are at a loss to see how, as a factual
matter, the standard can be met by respondents' mere profession of
an intent, some day, to
565
Besides relying upon the Kelly and Skilbred affidavits,
respondents propose a series of novel standing theories. The first,
inelegantly styled "ecosystem nexus," proposes that any person who
uses
any part of a "contiguous ecosystem" adversely affected
by a funded activity has standing even if the activity is located a
great distance away. This approach, as the Court of Appeals
correctly observed, is inconsistent with our opinion in
National
Wildlife Federation, which held that a plaintiff claiming
injury from environmental dam-
return. But if, as we suspect, "soon" means nothing more than
"in this lifetime," then the dissent has undertaken quite a
departure from our precedents. Although "imminence" is concededly a
somewhat elastic concept, it cannot be stretched beyond its
purpose, which is to ensure that the alleged injury is not too
speculative for Article III purposes-that the injury is '"
"certainly impending,"'"
id., at 158 (emphasis
added). It has been stretched beyond the breaking point when, as
here, the plaintiff alleges only an injury at some indefinite
future time, and the acts necessary to make the injury happen are
at least partly within the plaintiff's own control. In such
circumstances we have insisted that the injury proceed with a high
degree of immediacy, so as to reduce the possibility of deciding a
case in which no injury would have occurred at all. See,
e.
g., id., at
156-160; Los Angeles v.
Lyons,
461 U. S. 95,
102-106 (1983).
There is no substance to the dissent's suggestion that imminence
is demanded only when the alleged harm depends upon "the
affirmative actions of third parties beyond a plaintiff's control,"
post, at 592. Our cases
mention third-party-caused
contingency, naturally enough; but they also mention the
plaintiff's failure to show that he will soon expose
himself
to the injury, see,
e. g., Lyons, supra, at 105-106;
O'Shea v.
Littleton, 414 U. S. 488,497 (1974);
Ashcroft v.
Mattis, 431 U. S. 171, 172-173,
n. 2 (1977)
(per curiam). And there is certainly no reason
in principle to demand evidence that third persons will take the
action exposing the plaintiff to harm, while
presuming that
the plaintiff himself will do so.
Our insistence upon these established requirements of standing
does not mean that we would, as the dissent contends, "demand ...
detailed descriptions" of damages, such as a "nightly schedule of
attempted activities" from plaintiffs alleging loss of consortium.
Post, at 593. That case and the others posited by the
dissent all involve
actual harm; the existence of standing
is clear, though the precise extent of harm remains to be
determined at trial. Where there is no actual harm, however, its
imminence (though not its precise extent) must be established.
566
age must use the area affected by the challenged activity and
not an area roughly "in the vicinity" of it. 497 U. S., at 887-889;
see also
Sierra Club, 405 U. S., at 735. It makes no
difference that the general-purpose section of the ESA states that
the Act was intended in part "to provide a means whereby the
ecosystems upon which endangered species and threatened species
depend may be conserved," 16 U. S. c. § 1531(b). To say that the
Act protects ecosystems is not to say that the Act creates (if it
were possible) rights of action in persons who have not been
injured in fact, that is, persons who use portions of an ecosystem
not perceptibly affected by the unlawful action in question.
Respondents' other theories are called, alas, the "animal nexus"
approach, whereby anyone who has an interest in studying or seeing
the endangered animals anywhere on the globe has standing; and the
"vocational nexus" approach, under which anyone with a professional
interest in such animals can sue. Under these theories, anyone who
goes to see Asian elephants in the Bronx Zoo, and anyone who is a
keeper of Asian elephants in the Bronx Zoo, has standing to sue
because the Director of the Agency for International Development
(AID) did not consult with the Secretary regarding the AID-funded
project in Sri Lanka. This is beyond all reason. Standing is not
"an ingenious academic exercise in the conceivable,"
United
States v.
Students Challenging Regulatory Agency Procedures
(SCRAP), 412 U.
S. 669, 688 (1973), but as we have said requires, at the
summary judgment stage, a factual showing of perceptible harm. It
is clear that the person who observes or works with a particular
animal threatened by a federal decision is facing perceptible harm,
since the very subject of his interest will no longer exist. It is
even plausible-though it goes to the outermost limit of
plausibility-to think that a person who observes or works with
animals of a particular species in the very area of the world where
that species is threatened by a federal decision is facing such
harm, since some animals that
567
might have been the subject of his interest will no longer
exist, see
Japan Whaling Assn. v.
American Cetacean
Society, 478 U.
S. 221, 231, n. 4 (1986). It goes beyond the limit, however,
and into pure speculation and fantasy, to say that anyone who
observes or works with an endangered species, anywhere in the
world, is appreciably harmed by a single project affecting some
portion of that species with which he has no more specific
connection.3
3 The dissent embraces each of respondents' "nexus" theories,
rejecting this portion of our analysis because it is "unable to see
how the distant location of the destruction
necessarily (for
purposes of ruling at summary judgment) mitigates the harm" to the
plaintiff.
Post, at 594-595. But summary judgment must be
entered "against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial."
Celotex Corp. v.
Catrett, 477 U. S. 317, 322
(1986). Respondents had to adduce facts, therefore, on the basis of
which it could reasonably be found that concrete injury to their
members was, as our cases require, "certainly impending." The
dissent may be correct that the geographic remoteness of those
members (here in the United States) from Sri Lanka and Aswan does
not
"necessarily" prevent such a finding-but it assuredly
does so when no further facts have been brought forward (and
respondents have produced none) showing that the impact upon
animals in those distant places will in some fashion be reflected
here. The dissent's position to the contrary reduces to the notion
that distance
never prevents harm, a proposition we
categorically reject. It cannot be that a person with an interest
in an animal automatically has standing to enjoin federal threats
to that species of animal, anywhere in the world. Were that the
case, the plaintiff in
Sierra Club, for example, could have
avoided the necessity of establishing anyone's use of Mineral King
by merely identifying one of its members interested in an
endangered species of flora or fauna at that location. JUSTICE
BLACKMUN'S accusation that a special rule is being crafted for
"environmental claims,"
post, at 595, is correct, but
he is the craftsman.
JUSTICE STEVENS, by contrast, would allow standing on an
apparent "animal nexus" theory to all plaintiffs whose interest in
the animals is "genuine." Such plaintiffs, we are told, do not have
to visit the animals because the animals are analogous to family
members.
Post, at 583-584, and n. 2. We decline to join
JUSTICE STEVENS in this Linnaean leap. It is unclear to us what
constitutes a "genuine" interest; how it differs from
568
B
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. As we have said in another context, "suits challenging,
not specifically identifiable Government violations of law, but the
particular programs agencies establish to carry out their legal
obligations ... [are], even when premised on allegations of several
instances of violations of law, ... rarely if ever appropriate for
federalcourt adjudication."
Allen, 468 U. S., at
759-760.
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.
Whereas in other contexts the ESA is quite explicit as to the
Secretary's controlling authority, see,
e. g., 16 U.
S. C. § 1533(a)(1) ("The Secretary shall" promulgate regulations
determining endangered species); § 1535(d)(1) ("The Secretary is
authorized to provide financial assistance to any State"), with
respect to consultation the initiative, and hence arguably the
initial responsibility for determining statutory necessity, lies
with
a "nongenuine" interest (which nonetheless prompted a plaintiff
to file suit); and why such an interest in animals should be
different from such an interest in anything else that is the
subject of a lawsuit.
569
the agencies, see § 1536(a)(2)
("Each Federal agency
shall, in consultation with and with the assistance of the
Secretary, insure that any" funded action is not likely to
jeopardize endangered or threatened species) (emphasis added). When
the Secretary promulgated the regulation at issue here, he thought
it was binding on the agencies, see 51 Fed. Reg. 19928 (1986). The
Solicitor General, however, has repudiated that position here, and
the agencies themselves apparently deny the Secretary's authority.
(During the period when the Secretary took the view that § 7(a)(2)
did apply abroad, AID and FWS engaged in a running controversy over
whether consultation was required with respect to the Mahaweli
project, AID insisting that consultation applied only to domestic
actions.)
Respondents assert that this legal uncertainty did not affect
redressability (and hence standing) because the District Court
itself could resolve the issue of the Secretary's authority as a
necessary part of its standing inquiry. Assuming that it is
appropriate to resolve an issue of law such as this in connection
with a threshold standing inquiry, resolution by the District Court
would not have remedied respondents' alleged injury anyway, because
it would not have been binding upon the agencies. They were not
parties to the suit, and there is no reason they should be obliged
to honor an incidental legal determination the suit produced.4
The
4 We need not linger over the dissent's facially impracticable
suggestion,
post, at 595-596, that one agency of the
Government can acquire the power to direct other agencies by simply
claiming that power in its own regulations and in litigation to
which the other agencies are not parties. As for the contention
that the other agencies will be "collaterally estopped" to
challenge our judgment that they are bound by the Secretary of the
Interior's views, because of their participation in this suit,
post, at 596-597: Whether or not that is true now, it was
assuredly not true when this suit was filed, naming the Secretary
alone. "The existence of federal jurisdiction ordinarily depends on
the facts
as they exist when the complaint is filed."
Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U. S. 826, 830 (1989)
(empha-
570
Opinion of SCALIA, J.
Court of Appeals tried to finesse this problem by simply
proclaiming that "[w]e are satisfied that an injunction requiring
the Secretary to publish [respondents' desired] regulatio[n] ...
would result in consultation."
Defenders of Wildlife, 851 F.
2d, at 1042,1043-1044. We do not know what would justify that
confidence, particularly when the Justice Department (presumably
after consultation with the agencies) has taken the position that
the regulation is not binding.5 The
sis added). It cannot be that, by later participating in the
suit, the State Department and AID retroactively created a redress
ability (and hence a jurisdiction) that did not exist at the
outset.
The dissent's rejoinder that redress ability
was clear at
the outset because the
Secretary thought the regulation
binding on the agencies,
post, at 598-599, n. 4, continues
to miss the point: The
agencies did not
agree with
the Secretary, nor would they be bound by a district court holding
(as to this issue) in the Secretary's favor. There is no support
for the dissent's novel contention,
ibid., that Rule 19 of
the Federal Rules of Civil Procedure, governing joinder of
indispensable parties, somehow alters our longstanding rule that
jurisdiction is to be assessed under the facts existing when the
complaint is filed. The redressability element of the Article III
standing requirement and the
"complete relief" referred to
by Rule 19 are not identical. Finally, we reach the dissent's
contention,
post, at 599, n. 4, that by refusing to waive
our settled rule for purposes of this case we have made "federal
subject-matter jurisdiction ... a one-way street running the
Executive Branch's way." That is so, we are told, because the
Executive can dispel jurisdiction where it previously existed (by
either conceding the merits or by pointing out that nonparty
agencies would not be bound by a ruling), whereas a plaintiff
cannot retroactively create jurisdiction based on postcomplaint
litigation conduct. But
any defendant, not just the
Government, can dispel jurisdiction by conceding the merits (and
presumably thereby suffering a judgment) or by demonstrating
standing defects. And permitting a defendant to point out a
preexisting standing defect late in the day is not remotely
comparable to permitting a plaintiff to
establish standing
on the basis of the defendant's litigation conduct occurring after
standing is erroneously determined.
5 Seizing on the fortuity that the case has made its way to
this Court, JUSTICE STEVENS protests that no agency would
ignore "an authoritative construction of the [ESA] by this Court."
Post, at 585. In that he is probably correct; in concluding
from it that plaintiffs have demonstrated redress ability, he is
not. Since, as we have pointed out above, standing
571
short of the matter is that redress of the only injury in fact
respondents complain of requires action (termination of funding
until consultation) by the individual funding agencies; and any
relief the District Court could have provided in this suit against
the Secretary was not likely to produce that action.
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. As in
Simon, 426 U. S., at 43-44, it is
entirely conjectural whether the nonagency activity that affects
respondents will be altered or affected by the agency activity they
seek to achieve.6 There is no standing.
IV
The Court of Appeals found that respondents had standing for an
additional reason: because they had suffered a "procedural injury."
The so-called "citizen-suit" provision of the ESA provides, in
pertinent part, that "any person may com-
is to be determined as of the commencement of suit; since at
that point it could certainly not be known that the suit would
reach this Court; and since it is not likely that an agency would
feel compelled to accede to the legal view of a district court
expressed in a case to which it was not a party; redressability
clearly did not exist.
6 The dissent criticizes us for "overlook[ing]" memoranda
indicating that the Sri Lankan Government solicited and required
AID's assistance to mitigate the effects of the Mahaweli project on
endangered species, and that the Bureau of Reclamation was advising
the Aswan project.
Post, at 600-601. The memoranda, however,
contain no indication whatever that the projects will cease or be
less harmful to listed species in the absence of AID funding. In
fact, the Sri Lanka memorandum suggests just the opposite: It
states that AID's role will be to
mitigate the" 'negative
impacts to the wildlife,'"
post, at 600, which means that
the termination of AID funding would
exacerbate respondents'
claimed injury.
572
mence a civil suit on his own behalf (A) to enjoin any person,
including the United States and any other governmental
instrumentality or agency ... who is alleged to be in violation of
any provision of this chapter." 16 U. S. C. § 1540(g). The court
held that, because § 7(a)(2) requires interagency consultation, the
citizen-suit provision creates a "procedural righ[tJ" to
consultation in all "persons"-so that
anyone can file suit
in federal court to challenge the Secretary's (or presumably any
other official's) failure to follow the assertedly correct
consultative procedure, notwithstanding his or her inability to
allege any discrete injury flowing from that failure. 911 F. 2d, at
121-122. To understand the remarkable nature of this holding one
must be clear about what it does
not rest upon: This is not
a case where plaintiffs are seeking to enforce a procedural
requirement the disregard of which could impair a separate concrete
interest of theirs
(e. g., the procedural requirement for a
hearing prior to denial of their license application, or the
procedural requirement for an environmental impact statement before
a federal facility is constructed next door to them).7 Nor is it
simply a case where concrete injury has been suffered by many
persons, as in mass fraud or mass tort situations. Nor, finally, is
it the
7 There is this much truth to the assertion that "procedural
rights" are special: The person who has been accorded a procedural
right to protect his concrete interests can assert that right
without meeting all the normal standards for redressability and
immediacy. Thus, under our case law, one living adjacent to the
site for proposed construction of a federally licensed dam has
standing to challenge the licensing agency's failure to prepare an
environmental impact statement, even though he cannot establish
with any certainty that the statement will cause the license to be
withheld or altered, and even though the dam will not be completed
for many years. (That is why we do not rely, in the present case,
upon the Government's argument that,
even if the
other agencies were obliged to consult with the Secretary, they
might not have followed his advice.) What respondents' "procedural
rights" argument seeks, however, is quite different from this:
standing for persons who have no concrete interests
affected-persons who live (and propose to live) at the other end of
the country from the dam.
573
unusual case in which Congress has created a concrete private
interest in the outcome of a suit against a private party for the
Government's benefit, by providing a cash bounty for the victorious
plaintiff. Rather, the court held that the injury-in-fact
requirement had been satisfied by congressional conferral upon
all persons of an abstract, selfcontained, noninstrumental
"right" to have the Executive observe the procedures required by
law. We reject this view.8
We have consistently held that a plaintiff raising only a
generally available grievance about government-claiming only harm
to his and every citizen's interest in proper application of the
Constitution and laws, and seeking relief that
8The dissent's discussion of this aspect of the case,
post, at 601-606, distorts our opinion. We do
not
hold that an individual cannot enforce procedural rights; he
assuredly can, so long as the procedures in question are designed
to protect some threatened concrete interest of his that is the
ultimate basis of his standing. The dissent, however, asserts that
there exist "classes of procedural duties ... so enmeshed with the
prevention of a substantive, concrete harm that an individual
plaintiff may be able to demonstrate a sufficient likelihood of
injury just through the breach of that procedural duty."
Post, at 605. If we understand this correctly, it means that
the Government's violation of a certain (undescribed) class of
procedural duty satisfies the concrete-injury requirement by
itself, without any showing that the procedural violation endangers
a concrete interest of the plaintiff (apart from his interest in
having the procedure observed). We cannot agree. The dissent is
unable to cite a single case in which we actually found standing
solely on the basis of a "procedural right" unconnected to the
plaintiff's own concrete harm. Its suggestion that we did so in
Japan Whaling Assn. v.
American Cetacean Soc., 478 U.
S. 221 (1986), and
Robertson v.
Methow Valley Citizens
Council, 490 U. S. 332 (1989),
post, at 602-603, 605, is
not supported by the facts. In the former case, we found that the
environmental organizations had standing because the "whale
watching and studying of their members w[ould] be adversely
affected by continued whale harvesting," see 478 U. S., at 230-231,
n. 4; and in the latter we did not so much as mention standing, for
the very good reason that the plaintiff was a citizens' council for
the area in which the challenged construction was to occur, so that
its members would obviously be concretely affected, see
Methow
Valley Citizens Council v.
Regional Forester, 833 F.2d
810, 812-813
(CA9 1987).
574
no more directly and tangibly benefits him than it does the
public at large-does not state an Article III case or controversy.
For example, in
Fairchild v.
Hughes, 258 U. S. 126, 129-130
(1922), we dismissed a suit challenging the propriety of the
process by which the Nineteenth Amendment was ratified. Justice
Brandeis wrote for the Court:
"[This is] not a case within the meaning of ... Article III ....
Plaintiff has [asserted] only the right, possessed by every
citizen, to require that the Government be administered according
to law and that the public moneys be not wasted. Obviously this
general right does not entitle a private citizen to institute in
the federal courts a suit .... " Ibid.
In
Massachusetts v.
Mellon, 262 U. S. 447 (1923), we
dismissed for lack of Article III standing a taxpayer suit
challenging the propriety of certain federal expenditures. We
said:
"The party who invokes the power [of judicial review] must be
able to show not only that the statute is invalid but that he has
sustained or is immediately in danger of sustaining some direct
injury as the result of its enforcement, and not merely that he
suffers in some indefinite way in common with people generally ....
Here the parties plaintiff have no such case .... [T]heir complaint
... is merely that officials of the executive department of the
government are executing and will execute an act of Congress
asserted to be unconstitutional; and this we are asked to prevent.
To do so would be not to decide a judicial controversy, but to
assume a position of authority over the governmental acts of
another and coequal department, an authority which plainly we do
not possess." Id., at 488-489.
In
Ex parte Levitt, 302 U. S. 633 (1937), we dismissed a
suit contending that Justice Black's appointment to this Court
violated the Ineligibility Clause, Art. I, § 6, cl. 2.
575
"It is an established principle," we said, "that to entitle a
private individual to invoke the judicial power to determine the
validity of executive or legislative action he must show that he
has sustained or is immediately in danger of sustaining a direct
injury as the result of that action and it is not sufficient that
he has merely a general interest common to all members of the
public." 302 U. S., at 634. See also
Doremus v.
Board of
Ed. of Hawthorne, 342 U. S. 429, 433434
(1952) (dismissing taxpayer action on the basis of
Mellon).
More recent cases are to the same effect. In
United
States v.
Richardson, 418 U. S. 166 (1974), we
dismissed for lack of standing a taxpayer suit challenging the
Government's failure to disclose the expenditures of the Central
Intelligence Agency, in alleged violation of the constitutional
requirement, Art. I, § 9, cl. 7, that "a regular Statement and
Account of the Receipts and Expenditures of all public Money shall
be published from time to time." We held that such a suit rested
upon an impermissible "generalized grievance," and was inconsistent
with "the framework of Article III" because "the impact on
[plaintiff] is plainly undifferentiated and 'common to all members
of the public.'"
Richardson, supra, at 171, 176-177. And in
Schlesinger v.
Reservists Comm. to Stop the War,
418 U. S. 208
(1974), we dismissed for the same reasons a citizen-taxpayer suit
contending that it was a violation of the Incompatibility Clause,
Art. I, § 6, cl. 2, for Members of Congress to hold commissions in
the military Reserves. We said that the challenged action,
"standing alone, would adversely affect only the generalized
interest of all/citizens in constitutional governance .... We
reaffirm
Levitt in holding that standing to sue may not be
predicated upon an interest of th[is] kind .... "
Schlesinger,
supra, at 217, 220. Since
Schlesinger we have on two
occasions held that an injury amounting only to the alleged
violation of a right to have the Government act in accordance with
law was not judicially cognizable because
576
"'assertion of a right to a particular kind of Government
conduct, which the Government has violated by acting differently,
cannot alone satisfy the requirements of Art. III without draining
those requirements of meaning.'"
Allen, 468 U. S., at 754;
Valley Forge Christian College v.
Americans United for
Separation of Church and State, Inc., 454 U. S. 464, 483
(1982). And only two Terms ago, we rejected the notion that Article
III permits a citizen suit to prevent a condemned criminal's
execution on the basis of "'the public interest protections of the
Eighth Amendment'''; once again, "[t]his allegation raise[d] only
the 'generalized interest of all citizens in constitutional
governance' ... and [was] an inadequate basis on which to grant ...
standing."
Whitmore, 495 U. S., at 160.
To be sure, our generalized-grievance cases have typically
involved Government violation of procedures assertedly ordained by
the Constitution rather than the Congress. But there is absolutely
no basis for making the Article III inquiry turn on the source of
the asserted right. Whether the courts were to act on their own, or
at the invitation of Congress, in ignoring the concrete injury
requirement described in our cases, they would be discarding a
principle fundamental to the separate and distinct constitutional
role of the Third Branch-one of the essential elements that
identifies those "Cases" and "Controversies" that are the business
of the courts rather than of the political branches. "The province
of the court," as Chief Justice Marshall said in
Marbury v.
Madison, 1 Cranch 137, 170 (1803), "is, solely, to decide on
the rights of individuals." Vindicating the
public interest
(including the public interest in Government observance of the
Constitution and laws) is the function of Congress and the Chief
Executive. The question presented here is whether the public
interest in proper administration of the laws (specifically, in
agencies' observance of a particular, statutorily prescribed
procedure) can be converted into an individual right by a statute
that denominates it as such, and
577
that permits all citizens (or, for that matter, a subclass of
citizens who suffer no distinctive concrete harm) to sue. If the
concrete injury requirement has the separation-ofpowers
significance we have always said, the answer must be obvious: To
permit Congress to convert the undifferentiated public interest in
executive officers' compliance with the law into an "individual
right" vindicable in the courts is to permit 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. II, § 3. It would enable the courts,
with the permission of Congress, "to assume a position of authority
over the governmental acts of another and co-equal department,"
Massachusetts v.
Mellon, 262 U. S., at 489, and to
become" 'virtually continuing monitors of the wisdom and soundness
of Executive action.'"
Allen, supra, at 760 (quoting
Laird v.
Tatum, 408 U. S. 1, 15 (1972)). We
have always rejected that vision of our role:
"When Congress passes an Act empowering administrative agencies
to carryon governmental activities, the power of those agencies is
circumscribed by the authority granted. This permits the courts to
participate in law enforcement entrusted to administrative bodies
only to the extent necessary to protect justiciable individual
rights against administrative action fairly beyond the granted
powers .... This is very far from assuming that the courts are
charged more than administrators or legislators with the protection
of the rights of the people. Congress and the Executive supervise
the acts of administrative agents .... But under Article III,
Congress established courts to adjudicate cases and controversies
as to claims of infringement of individual rights whether by
unlawful action of private persons or by the exertion of
unauthorized administrative power." Stark v. Wickard,
321 U. S. 288,
309-310 (1944) (footnote omitted).
578
"Individual rights," within the meaning of this passage, do not
mean public rights that have been legislatively pronounced to
belong to each individual who forms part of the public. See also
Sierra Club, 405 U. S., at 740-741, n.16.
Nothing in this contradicts the principle that "[t]he ... injury
required by Art. III may exist solely by virtue of 'statutes
creating legal rights, the invasion of which creates standing.'"
Warth, 422 U. S., at 500 (quoting
Linda R. S. v.
Richard D., 410 U. S. 614, 617, n. 3
(1973)). Both of the cases used by
Linda R. S. as an
illustration of that principle involved Congress' elevating to the
status of legally cognizable injuries concrete,
de facto
injuries that were previously inadequate in law (namely, injury to
an individual's personal interest in living in a racially
integrated community, see
Trafficante v.
Metropolitan
Life Ins. Co., 409 U. S. 205, 208-212
(1972), and injury to a company's interest in marketing its product
free from competition, see
Hardin v.
Kentucky Utilities
Co., 390 U. S.
1, 6 (1968)). As we said in
Sierra Club, "[Statutory]
broadening [of] the categories of injury that may be alleged in
support of standing is a different matter from abandoning the
requirement that the party seeking review must himself have
suffered an injury." 405 U. S., at 738. Whether or not the
principle set forth in
Warth can be extended beyond that
distinction, it is clear that in suits against the Government, at
least, the concrete injury requirement must remain.
***
We hold that respondents lack standing to bring this action and
that the Court of Appeals erred in denying the summary judgment
motion filed by the United States. The opinion of the Court of
Appeals is hereby reversed, and the cause is remanded for
proceedings consistent with this opinion.
It is so ordered.
579
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 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, 405 U.
S. 727, 735 (1972). This component of the standing inquiry is
not satisfied unless
"[p]laintiffs ... demonstrate a 'personal stake in the outcome.'
... Abstract injury is not enough. 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, 461 U. S. 95, 101-102 (1983) (citations omitted).
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, 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, at 735, n. 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. v.
American Cetacean Society, 478 U. S. 221, 231, n. 4
(1986) ("[R]espondents ... undoubtedly have alleged a sufficient
'injury in fact' in that
580
the whale watching 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,
Gibbons v.
Ogden, 9 Wheat. 1 (1824). 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. See
Warth v.
Seldin, 422 U. S. 490, 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 on "any person ... to enjoin ...
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." 16 U. S. C.
§ 1540(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 ab-
581
sence 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. 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 that "the legal questions
presented ... will be resolved, not in the rarified 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., 454 U. S. 464, 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. The
concrete injury requirement helps assure that there can be an
answer to these questions; and, as the Court's opinion is careful
to show, that is part of the constitutional design.
With these observations, I concur in Parts I, II, III-A, and IV
of the Court's opinion and in the judgment of the Court.
JUSTICE STEVENS, concurring in the judgment.
Because I am not persuaded that Congress intended the
consultation requirement in § 7(a)(2) of the Endangered Species Act
of 1973 (ESA), 16 U. S. C. § 1536(a)(2), to apply to activities in
foreign countries, I concur in the judgment of reversal. I do not,
however, agree with the Court's conclu-
582
sion that respondents lack standing because the threatened
injury to their interest in protecting the environment and studying
endangered species is not "imminent." Nor do I agree with the
plurality's additional conclusion that respondents' injury is not
"redressable" in this litigation.
I
In my opinion a person who has visited the critical habitat of
an endangered species has a professional interest in preserving the
species and its habitat, and intends to revisit them in the future
has standing to challenge agency action that threatens their
destruction. Congress has found that a wide variety of endangered
species of fish, wildlife, and plants are of "aesthetic,
ecological, educational, historical, recreational, and scientific
value to the Nation and its people." 16 U. S. C. § 1531(a)(3).
Given that finding, we have no license to demean the importance of
the interest that particular individuals may have in observing any
species or its habitat, whether those individuals are motivated by
esthetic enjoyment, an interest in professional research, or an
economic interest in preservation of the species. Indeed, this
Court has often held that injuries to such interests are sufficient
to confer standing,l and the Court reiterates that holding today.
See
ante, at 562-563.
The Court nevertheless concludes that respondents have not
suffered "injury in fact" because they have not shown that the harm
to the endangered species will produce "imminent" injury to them.
See
ante, at 564. I disagree. An injury to an individual's
interest in studying or enjoying a species and its natural habitat
occurs when someone (whether it be the Government or a private
party) takes action that harms that species and habitat. In my
judgment,
1 See, e. g., Sierra Club v. Morton,
405 U. S. 727, 734
(1972); United States v. Students Challenging Regulatory Agency
Procedures (SCRAP),
412 U. S. 669, 686-687
(1973); Japan Whaling Assn. v. American Cetacean Society,
478 U. S. 221, 230-231,
n. 4 (1986).
583
therefore, the "imminence" of such an injury should be measured
by the timing and likelihood of the threatened environmental harm,
rather than-as the Court seems to suggest,
ante, at 564, and
n. 2-by the time that might elapse between the present and the time
when the individuals would visit the area if no such injury should
occur.
To understand why this approach is correct and consistent with
our precedent, it is necessary to consider the purpose of the
standing doctrine. Concerned about "the properand properly
limited-role of the courts in a democratic society," we have long
held that "Art. III judicial power exists only to redress or
otherwise to protect against injury to the complaining party."
Warth v.
Seldin, 422 U. S. 490, 498-499
(1975). The plaintiff must have a "personal stake in the outcome"
sufficient to "assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination of difficult ... questions."
Baker v.
Carr, 369 U.
S. 186, 204 (1962). For that reason, "[a]bstract injury is not
enough. It must be alleged that the plaintiff 'has sustained or is
immediately in danger of sustaining some direct injury' as the
result of the challenged statute or official conduct .... The
injury or threat of injury must be both 'real and immediate,' not
'conjectural,' or 'hypothetical.'"
O'Shea v.
Littleton, 414
U. S. 488, 494 (1974) (quoting
Golden v.
Zwickler, 394
U. S. 103, 109-110 (1969)).
Consequently, we have denied standing to plaintiffs whose
likelihood of suffering any concrete adverse effect from the
challenged action was speculative. See,
e. g., Whitmore v.
Arkansas, 495
U. S. 149, 158-159 (1990);
Los Angeles v.
Lyons,
461 U. S. 95, 105
(1983);
O'Shea, 414 U. S., at 497. In this case, however,
the likelihood that respondents will be injured by the destruction
of the endangered species is not speculative. If respondents are
genuinely interested in the preservation of the endangered species
and intend to study or observe these animals in the future, their
injury will occur as soon as the animals are destroyed. Thus the
only poten-
584
STEVENS, J., concurring in judgment
tial source of "speculation" in this case is whether
respondents' intent to study or observe the animals is genuine.2 In
my view, Joyce Kelly and Amy Skilbred have introduced sufficient
evidence to negate petitioner's contention that their claims of
injury are "speculative" or "conjectural." As JUSTICE BLACKMUN
explains,
post, at 591-592, a reasonable finder of fact
could conclude, from their past visits, their professional
backgrounds, and their affidavits and deposition testimony, that
Ms. Kelly and Ms. Skilbred will return to the project sites and,
consequently, will be injured by the destruction of the endangered
species and critical habitat.
The plurality also concludes that respondents' injuries are not
redressable in this litigation for two reasons. First, respondents
have sought only a declaratory judgment that the Secretary of the
Interior's regulation interpreting § 7(a)(2) to require
consultation only for agency actions in the United States or on the
high seas is invalid and an injunction requiring him to promulgate
a new regulation requiring consultation for agency actions abroad
as well. But, the plurality opines, even if respondents succeed and
a new regulation is
2 As we recognized in
Sierra Club v.
Morton, 405
U. S., at 735, the impact of changes in the esthetics or ecology of
a particular area does "not fall indiscriminately upon every
citizen. The alleged injury will be felt directly only by those who
use [the area,] and for whom the aesthetic and recreational values
of the area will be lessened .... " Thus, respondents would not be
injured by the challenged projects if they had not visited the
sites or studied the threatened species and habitat. But, as
discussed above, respondents did visit the sites; moreover, they
have expressed an intent to do so again. This intent to revisit the
area is significant evidence tending to confirm the genuine
character of respondents' interest, but I am not at all sure that
an intent to revisit would be indispensable in every case. The
interest that confers standing in a case of this kind is
comparable, though by no means equivalent, to the interest in a
relationship among family members that can be immediately harmed by
the death of an absent member, regardless of when, if ever, a
family reunion is planned to occur. Thus, if the facts of this case
had shown repeated and regular visits by the respondents, cf.
ante, at 579 (opinion of KENNEDY, J.), proof of an intent to
revisit might well be superfluous.
585
promulgated, there is no guarantee that federal agencies that
are not parties to this case will actually consult with the
Secretary. See
ante, at 568-571. Furthermore, the plurality
continues, respondents have not demonstrated that federal agencies
can influence the behavior of the foreign governments where the
affected projects are located. Thus, even if the agencies consult
with the Secretary and terminate funding for foreign projects, the
foreign governments might nonetheless pursue the projects and
jeopardize the endangered species. See
ante, at 571. Neither
of these reasons is persuasive.
We must presume that if this Court holds that § 7(a)(2) requires
consultation, all affected agencies would abide by that
interpretation and engage in the requisite consultations. Certainly
the Executive Branch cannot be heard to argue that an authoritative
construction of the governing statute by this Court may simply be
ignored by any agency head. Moreover, if Congress has required
consultation between agencies, we must presume that such
consultation will have a serious purpose that is likely to produce
tangible results. As JUSTICE BLACKMUN explains,
post, at
599-601, it is not mere speculation to think that foreign
governments, when faced with the threatened withdrawal of United
States assistance, will modify their projects to mitigate the harm
to endangered species.
II
Although I believe that respondents have standing, I
nevertheless concur in the judgment of reversal because I am
persuaded that the Government is correct in its submission that §
7(a)(2) does not apply to activities in foreign countries. As with
all questions of statutory construction, the question whether a
statute applies extraterritorially is one of congressional intent.
Foley Bros., Inc. v.
Filardo, 336 U. S. 281, 284-285
(1949). We normally assume that "Congress is primarily concerned
with domestic conditions,"
id., at 285, and therefore
presume that "'legislation of Congress, unless a
586
STEVENS, J., concurring in judgment
contrary intent appears, is meant to apply only within the
territorial jurisdiction of the United States,'"
EEOC v.
Arabian American Oil Co., 499 U. S. 244, 248 (1991)
(quoting
Foley Bros., 336 U. S., at 285).
Section 7(a)(2) provides, in relevant part:
"Each Federal agency shall, in consultation with and with the
assistance of the Secretary [of the Interior or Commerce, as
appropriate3], insure that any action authorized, funded, or
carried out by such agency (hereinafter in this section referred to
as an 'agency action') 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, unless such
agency has been granted an exemption for such action by the
Committee pursuant to subsection (h) of this section .... " 16 U.
S. C. § 1536(a)(2).
Nothing in this text indicates that the section applies in
foreign countries.4 Indeed, the only geographic reference in
3The ESA defines "Secretary" to mean "the Secretary of the
Interior or the Secretary of Commerce as program responsibilities
are vested pursuant to the provisions of Reorganization Plan
Numbered 4 of 1970." 16 U. S. C. § 1532(15). As a general matter,
"marine species are under the jurisdiction of the Secretary of
Commerce and all other species are under the jurisdiction of the
Secretary of the Interior." 51 Fed. Reg. 19926 (1986) (preamble to
final regulations governing interagency consultation promulgated by
the Fish and Wildlife Service and the National Marine Fisheries
Service on behalf of the Secretary of the Interior and the
Secretary of Commerce).
4 Respondents point out that the duties in § 7(a)(2) are phrased
in broad, inclusive language: "Each Federal agency" shall consult
with the Secretary and ensure that "any action" does not jeopardize
"any endangered or threatened species" or destroy or adversely
modify the "habitat of such species." See Brief for Respondents 36;
16 U. S. C. § 1536(a)(2). The Court of Appeals correctly
recognized, however, that such inclusive language, by itself, is
not sufficient to overcome the presumption against the
587
the section is in the "critical habitat" clause,5 which mentions
"affected States." The Secretary of the Interior and the Secretary
of Commerce have consistently taken the position that they need not
designate critical habitat in foreign countries. See 42 Fed. Reg.
4869 (1977) (initial regulations of the Fish and Wildlife Service
and the National Marine Fisheries Service on behalf of the
Secretary of the Interior and the Secretary of Commerce).
Consequently, neither Secretary interprets § 7(a)(2) to require
federal agencies to engage in consultations to ensure that their
actions in foreign countries will not adversely affect the critical
habitat of endangered or threatened species.
That interpretation is sound, and, in fact, the Court of Appeals
did not question it.6 There is, moreover, no indication that
Congress intended to give a different geographic scope to the two
clauses in § 7(a)(2). To the contrary, Congress recognized that one
of the "major causes" of extinction of
extraterritorial application of statutes.
911
F.2d 117, 122
(CA8 1990); see also
Foley Bros.,
Inc. v.
Filardo, 336 U. S. 281, 282,
287-288 (1949) (statute requiring an 8-hour day provision in
"'[e]very contract made to which the United States ... is a party'"
is inapplicable to contracts for work performed in foreign
countries).
5 Section 7(a)(2) has two clauses which require federal agencies
to consult with the Secretary to ensure that their actions (1) do
not jeopardize threatened or endangered species (the "endangered
species clause"), and (2) are not likely to destroy or adversely
affect the habitat of such species (the "critical habitat
clause").
6 Instead, the Court of Appeals concluded that the endangered
species clause and the critical habitat clause are "severable," at
least with respect to their "geographical scope," so that the
former clause applies extraterritorially even if the latter does
not. 911 F. 2d, at 125. Under this interpretation, federal agencies
must consult with the Secretary to ensure that their actions in
foreign countries are not likely to threaten any endangered
species, but they need not consult to ensure that their actions are
not likely to destroy the critical habitats of these species. I
cannot subscribe to the Court of Appeals' strained interpretation,
for there is no indication that Congress intended to give such
vastly different scope to the two clauses in § 7(a)(2).
588
endangered species is the "destruction of natural habitat." S.
Rep. No. 93-307, p. 2 (1973); see also H. Rep. No. 93-412, p. 2
(1973);
TVA v.
Hill, 437 U. S. 153, 179
(1978). It would thus be illogical to conclude that Congress
required federal agencies to avoid jeopardy to endangered species
abroad, but not destruction of critical habitat abroad.
The lack of an express indication that the consultation
requirement applies extraterritorially is particularly significant
because other sections of the ESA expressly deal with the problem
of protecting endangered species abroad. Section 8, for example,
authorizes the President to provide assistance to "any foreign
country (with its consent) ... in the development and management of
programs in that country which [are] ... necessary or useful for
the conservation of any endangered species or threatened species
listed by the Secretary pursuant to section 1533 of this title." 16
U. S. C. § 1537(a). It also directs the Secretary of the Interior,
"through the Secretary of State," to "encourage" foreign countries
to conserve fish and wildlife and to enter into bilateral or
multilateral agreements. § 1537(b). Section 9 makes it unlawful to
import endangered species into (or export them from) the United
States or to otherwise traffic in endangered species "in interstate
or foreign commerce." §§ 1538(a)(1)(A), (E), (F). Congress thus
obviously thought about endangered species abroad and devised
specific sections of the ESA to protect them. In this context, the
absence of any explicit statement that the consultation requirement
is applicable to agency actions in foreign countries suggests that
Congress did not intend that § 7(a)(2) apply
extraterritorially.
Finally, the general purpose of the ESA does not evince a
congressional intent that the consultation requirement be
applicable to federal agency actions abroad. The congressional
findings explaining the need for the ESA emphasize that "various
species of fish, wildlife, and plants
in the United States
have been rendered extinct as a consequence
589
of economic growth and development untempered by adequate
concern and conservation," and that these species "are of
aesthetic, ecological, educational, historical, recreational, and
scientific value to the
Nation and its people." §§ 1531(1),
(3) (emphasis added). The lack of similar findings about the harm
caused by development in other countries suggests that Congress was
primarily concerned with balancing development and conservation
goals in this country.7
In short, a reading of the entire statute persuades me that
Congress did not intend the consultation requirement in § 7(a)(2)
to apply to activities in foreign countries. Accordingly,
notwithstanding my disagreement with the Court's disposition of the
standing question, I concur in its judgment.
JUSTICE 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
7 Of course, Congress also found that "the United States has
pledged itself as a sovereign state in the international community
to conserve to the extent practicable the various species of fish
or wildlife and plants facing extinction, pursuant to [several
international agreements]," and that "encouraging the States ... to
develop and maintain conservation programs which meet national and
international standards is a key to meeting the Nation's
international commitments .... " 16 U. S. C. §§ 1531(4), (5). The
Court of Appeals read these findings as indicative of a
congressional intent to make § 7(a)(2)'s consultation requirement
applicable to agency action abroad. See 911 F. 2d, at 122-123. I am
not persuaded, however, that such a broad congressional intent can
be gleaned from these findings. Instead, I think the findings
indicate a more narrow congressional intent that the United States
abide by its international commitments.
590
citizen suits in the federal courts for injuries deemed
"procedural" in nature. I dissent.
I
Article 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."
Allen v.
Wright, 468 U.
S. 737, 751 (1984).
A
To 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. 56(c). 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]."
Anderson v.
Liberty Lobby,
Inc., 477 U. S.
242, 248 (1986). This Court's "function is not [it]self 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.
Ante, at 563. The Court thereby confuses respondents'
evidentiary burden (i.
e., affidavits asserting "specific
facts") in withstanding a summary judgment motion under Rule 56(e)
with the standard of proof (i.
e., the existence of a
"genuine issue" of "material fact") under Rule 56(c).
591
1
Were the Court to apply the proper standard for summary
judgment, I believe it would conclude that the sworn affidavits and
deposition testimony of Joyce Kelly and Amy Skilbred advance
sufficient facts to create a genuine issue for trial concerning
whether one or both would be imminently harmed by the Aswan and
Mahaweli projects. In the first instance, as the Court itself
concedes, the affidavits contained facts making it at least
"questionable" (and therefore within the province of the
factfinder) that certain agencyfunded projects threaten listed
species.1
Ante, at 564. The only remaining issue, then, is
whether Kelly and Skilbred have shown that they personally would
suffer imminent harm.
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 state-
1 The record is replete with genuine issues of fact about the
harm to endangered species from the Aswan and Mahaweli projects.
For example, according to an internal memorandum of the Fish and
Wildlife Service, no fewer than eight listed species are found in
the Mahaweli project area (Indian elephant, leopard, purple-faced
langur, toque macaque, red face malkoha, Bengal monitor, mugger
crocodile, and python). App. 78. The memorandum recounts that the
Sri Lankan Government has specifically requested assistance from
the Agency for International Development (AID) in "mitigating the
negative impacts to the wildlife involved."
Ibid. In
addition, a letter from the Director of the Fish and Wildlife
Service to AID warns: "The magnitude of the Accelerated Mahaweli
Development Program could have massive environmental impacts on
such an insular ecosystem as the Mahaweli River system."
Id., at 215. It adds: "The Sri Lankan government lacks the
necessary finances to undertake any long-term management programs
to avoid the negative impacts to the wildlife."
Id., at 216.
Finally, in an affidavit submitted by petitioner for purposes of
this litigation, an AID official states that an AID environmental
assessment "showed that the [Mahaweli] project could affect several
endangered species."
Id., at 159.
592
ments that they intended to revisit the project sites as "simply
not enough."
Ibid. 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,"
ibid., 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. Cf.
Los Angeles v.
Lyons, 461 U. S. 95, 102 (1983)
("Past wrongs were evidence bearing on whether there is a real and
immediate threat of repeated injury") (internal quotation marks
omitted). Similarly, Kelly's and Skilbred's professional
backgrounds in wildlife preservation, see App. 100, 144, 309-310,
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 some day [for a return visit] will be,"
ante, at 564, 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
Whitmore v.
Arkansas, 495 U. S. 149, 155-156
(1990) (harm to plaintiff death-row inmate from fellow inmate's
execution depended on the court's one day reversing plaintiff's
conviction or sentence and considering comparable sentences at
resentencing);
Los Angeles v.
Lyons, 461 U. S., at
105 (harm dependent on police's arresting plaintiff again
593
and subjecting him to chokehold);
Rizzo v.
Goode,
423 U. S. 362,
372 (1976) (harm rested upon "what one of a small, unnamed minority
of policemen might do to them in the future because of that unknown
policeman's perception of departmental disciplinary procedures");
O'Shea v.
Littleton, 414 U. S. 488, 495-498
(1974) (harm from discriminatory conduct of county magistrate and
judge dependent on plaintiffs' being arrested, tried, convicted,
and sentenced);
Golden v.
Zwickler, 394 U. S. 103, 109 (1969)
(harm to plaintiff dependent on a former Congressman's (then
serving a 14-year term as a judge) running again for Congress). 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.
I fear the Court's demand for detailed descriptions of future
conduct will do little to weed out those who are genuinely harmed
from those who are not. More likely, it will resurrect a
code-pleading formalism in federal court summary judgment practice,
as federal courts, newly doubting their jurisdiction, will demand
more and more particularized showings of future harm. Just to
survive summary judgment, for example, a property owner claiming a
decline in the value of his property from governmental action might
have to specify the exact date he intends to sell his property and
show that there is a market for the property, lest it be surmised
he might not sell again. A nurse turned down for a job on grounds
of her race had better be prepared to show on what date she was
prepared to start work, that she had arranged daycare for her
child, and that she would not have accepted work at another
hospital instead. And a Federal Tort Claims Act plaintiff alleging
loss of consortium should make sure to furnish this Court with a
"description of concrete plans" for her nightly schedule of
attempted activities.
594
The Court also rejects respondents' claim of vocational or
professional injury. The Court says that it is "beyond all reason"
that a zoo "keeper" of Asian elephants would have standing to
contest his Government's participation in the eradication of all
the Asian elephants in another part of the world.
Ante, at
566. I am unable to see how the distant location of the destruction
necessarily (for purposes of ruling
595
at summary judgment) mitigates the harm to the elephant keeper.
If there is no more access to a future supply of the animal that
sustains a keeper's livelihood, surely there is harm.
I have difficulty imagining this Court applying its rigid
principles of geographic formalism anywhere outside the context of
environmental claims. As I understand it, environmental plaintiffs
are under no special constitutional standing disabilities. Like
other plaintiffs, they need show only that the action they
challenge has injured them, without necessarily showing they
happened to be physically near the location of the alleged wrong.
The Court's decision today should not be interpreted "to foreclose
the possibility ... that in different circumstances a nexus theory
similar to those proffered here might support a claim to standing."
Ante, at 579 (KENNEDY, J., concurring in part and concurring
in judgment).
B
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.
Duke Power Co. v.
Carolina Environmental Study Group, Inc., 438 U. S. 59, 74-75, and
n. 20 (1978) (plaintiff must show "substantiallikelihood" that
relief requested will redress the 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. 50 CFR §402.14(a) (1991).2 And he has previously
2 This section provides in part:
"(a)
Requirement for formal consultation. Each Federal
agency shall review its actions at the earliest possible time to
determine whether any
596
taken the same position in this very litigation, having stated
in his answer to the complaint that petitioner "admits the Fish and
Wildlife Service (FWS) was designated the lead agency for the
formulation of regulations concerning section 7 of the [Endangered
Species Act]." App. 246. I cannot agree with the plurality that the
Secretary (or the Solicitor General) is now free, for the
convenience of this appeal, to disavow his prior public and
litigation positions. More generally, I cannot agree that the
Government is free to play "Three-Card Monte" with its description
of agencies' authority to defeat standing against the agency given
the lead in administering a statutory scheme.
Emphasizing that none of the action agencies are parties to this
suit (and having rejected the possibility of their being indirectly
bound by petitioner's regulation), the plurality concludes that
"there is no reason they should be obliged to honor an incidental
legal determination the suit produced."
Ante, at 569. I am
not as willing as the plurality is to assume that agencies at least
will not try to follow the law. Moreover, I wonder if the plurality
has not overlooked the extensive involvement from the inception of
this litigation by the Department of State and AID.3 Under
action may affect listed species or critical habitat. If such a
determination is made, formal consultation is required .... "
The Secretary's intent to make the regulations binding upon
other agencies is even clearer from the discussion accompanying
promulgation of the consultation rules. See 51 Fed. Reg. 19928
(1986) ("Several commenters stated that Congress did not intend
that the Service interpret or implement section 7, and believed
that the Service should recast the regulations as 'nonbinding
guidelines' that would govern only the Service's role in
consultation .... The Service is satisfied that it has ample
authority and legislative mandate to issue this rule, and believes
that uniform consultation standards and procedures are necessary to
meet its obligations under section 7").
3 For example, petitioner's motion before the District Court to
dismiss the complaint identified four attorneys from the Department
of State and AID (an agency of the Department of State) as
"counsel" to the attorneys from the Justice Department in this
action. One AID lawyer actually
597
principles of collateral estoppel, these agencies are precluded
from subsequently relitigating the issues decided in this suit.
"[O]ne who prosecutes or defends a suit in the name of another
to establish and protect his own right, or who assists in the
prosecution or defense of an action in aid of some interest of his
own, and who does this openly to the knowledge of the opposing
party, is as much bound by the judgment and as fully entitled to
avail himself of it as an estoppel against an adverse party, as he
would be if he had been a party to the record." Souffront v.
Compagnie des Sucreries de Porto Rico, 217 U. S. 475, 487
(1910).
This principle applies even to the Federal Government. In
Montana v.
United States, 440 U. S. 147 (1979),
this Court held that the Government was estopped from relitigating
in federal court the constitutionality of Montana's gross receipts
tax, because that issue previously had been litigated in state
court by an individual contractor whose litigation had been
financed and controlled by the Federal Government. "Thus, although
not a party, the United States plainly had a sufficient 'laboring
oar' in the conduct of the state-court litigation to actuate
principles of estoppel."
Id., at 155. See also
United
States v.
Mendoza, 464 U. S. 154, 164, n. 9
(1984) (Federal Government estopped where it "constituted a 'party'
in all but a technical sense"). In my view, the action agencies
have had sufficient "laboring oars" in this litigation since its
inception to be bound from subsequent
entered a formal appearance before the District Court on behalf
of AID. On at least one occasion petitioner requested an extension
of time to file a brief, representing that" '[a]n extension is
necessary for the Department of Justice to consult with ... the
Department of State [on] the brief.''' See Brief for Respondents
31, n. 8. In addition, AID officials have offered testimony in this
action.
598
relitigation of the extraterritorial scope of the § 7
consultation requirement.4 As a result, I believe respondents'
injury would likely be redressed by a favorable decision.
4 The plurality now suggests that collateral-estoppel principles
can have no application here, because the participation of other
agencies in this litigation arose
after its inception.
Borrowing a principle from this Court's statutory diversity
jurisdiction cases and transferring it to the constitutional
standing context, the Court observes: "'The existence of federal
jurisdiction ordinarily depends on the facts
as they exist when
the complaint is filed.''' Ante, at 569, n. 4 (quoting
Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U. S. 826, 830
(1989)). See also
Mollan v.
Torrance, 9 Wheat. 537,
539 (1824) (Marshall, C. J.). The plurality proclaims that "[i]t
cannot be" that later participation of other agencies in this suit
retroactively created a jurisdictional issue that did not exist at
the outset.
Ante, at 570, n. 4.
The plurality, however, overlooks at least three difficulties
with this explanation. In the first place, assuming that the
plurality were correct that events as of the initiation of the
lawsuit are the only proper jurisdictional reference point, were
the Court to follow this rule in this case there would be no
question as to the compliance of other agencies, because, as stated
at an earlier point in the opinion: "When the Secretary promulgated
the regulation at issue here, he thought it was binding on the
agencies."
Ante, at 569. This suit was commenced in October
1986, just three months after the regulation took effect. App. 21;
51 Fed. Reg. 19926 (1986). As the plurality further admits,
questions about compliance of other agencies with the Secretary's
regulation arose only by later participation of the Solicitor
General and other agencies in the suit.
Ante, at 569. Thus,
it was, to borrow the plurality's own words, "assuredly not true
when this suit was filed, naming the Secretary alone,"
ante,
at 569, n. 4, that there was any question before the District Court
about other agencies being bound.
Second, were the plurality correct that, for purposes of
determining redress ability, a court may look only to facts as they
exist when the complaint is filed, then the Court by implication
would render a nullity part of Rule 19 of the Federal Rules of
Civil Procedure. Rule 19 provides in part for the joinder of
persons if "in the person's absence complete relief cannot be
accorded among those already parties." This presupposes
nonredressability at the outset of the litigation. Under the
plurality's rationale, a district court would have no authority to
join indispensable parties, because it would, as an initial matter,
have no jurisdiction for lack of the power to provide redress at
the outset of the litigation.
Third, the rule articulated in
Newman-Green is that the
existence of federal jurisdiction
"ordinarily" depends on
the facts at the initiation of
599
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."
Ante, at 571. What this
Court might "generally" take to be true does not eliminate the
existence of a genuine issue of fact to withstand summary judgment.
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.
The plurality states that "AID, for example, has provided less
than 10% of the funding for the Mahaweli project."
Ibid. The
plurality neglects to mention that this "fraction" amounts to $170
million, see App. 159, not so paltry a sum for a country of only 16
million people with a gross national product of less than $6
billion in 1986 when respondents filed
the lawsuit. This is no ironclad
per se rule without
exceptions. Had the Solicitor General, for example, taken a
position during this appeal that the § 7 consultation requirement
does in fact apply extraterritorially, the controversy would be
moot, and this Court would be without jurisdiction.
In the plurality's view, federal subject-matter jurisdiction
appears to be a one-way street running the Executive Branch's way.
When the Executive Branch wants to dispel jurisdiction over an
action against an agency, it is free to raise at any point in the
litigation that other nonparty agencies might not be bound by any
determinations of the one agency defendant. When a plaintiff,
however, seeks to preserve jurisdiction in the face of a claim of
nonredressability, the plaintiff is not free to point to the
involvement of nonparty agencies in subsequent parts of the
litigation. The plurality does not explain why the street runs only
one way-why some actions of the Executive Branch subsequent to
initiation of a lawsuit are cognizable for jurisdictional purposes
but others simply are not.
More troubling still is the distance this one-way street carries
the plurality from the underlying purpose of the standing doctrine.
The purpose of the standing doctrine is to ensure that courts do
not render advisory opinions rather than resolve genuine
controversies between adverse parties. Under the plurality's
analysis, the federal courts are to ignore their
present
ability to resolve a concrete controversy if at some distant point
in the past it could be said that redress could not have been
provided. The plurality perverts the standing inquiry.
600
the complaint in this action. Federal Research Division, Library
of Congress, Sri Lanka: A Country Study (Area Handbook Series)
xvi-xvii (1990).
The plurality flatly states: "Respondents have produced nothing
to indicate that the projects they have named will ... do less harm
to listed species, if that fraction is eliminated."
Ante, at
571. As an initial matter, the relevant inquiry is not, as the
plurality suggests, what will happen if AID or other agencies stop
funding projects, but what will happen if AID or other agencies
comply with the consultation requirement for projects abroad.
Respondents filed suit to require consultation, not a termination
of funding. Respondents have raised at least a genuine issue of
fact that the projects harm endangered species and that the actions
of AID and other United States agencies can mitigate that harm.
The plurality overlooks an Interior Department memorandum
listing eight endangered or threatened species in the Mahaweli
project area and recounting that "[t]he Sri Lankan government has
requested the assistance of AID in mitigating the negative impacts
to the wildlife involved." App. 78. Further, a letter from the
Director of the Fish and Wildlife Service to AID states:
"The Sri Lankan government lacks the necessary finances to
undertake any long-term management programs to avoid the negative
impacts to the wildlife. The donor nations and agencies that are
financing the [Mahaweli project] will be the key as to how
successfully the wildlife is preserved. If wildlife problems
receive the same level of attention as the engineering project,
then the negative impacts to the environment can be alleviated.
This means that there has to be long-term funding in sufficient
amounts to stem the negative impacts of this project." Id.,
at 216.
601
I do not share the plurality's astonishing confidence that, on
the record here, a factfinder could only conclude that AID was
powerless to ensure the protection of listed species at the
Mahaweli project.
As for the Aswan project, the record again rebuts the
plurality's assumption that donor agencies are without any
authority to protect listed species. Kelly asserted in her
affidavit-and it has not been disputed-that the Bureau of
Reclamation was "overseeing" the rehabilitation of the Aswan
project.
Id., at 101. See also
id., at 65 (Bureau of
Reclamation publication stating: "In 1982, the Egyptian government
... requested that Reclamation serve as its engineering advisor for
the nine-year [Aswan] rehabilitation project").
I find myself unable to agree with the plurality's analysis of
redressability, based as it is on its invitation of executive
lawlessness, ignorance of principles of collateral estoppel,
unfounded assumptions about causation, and erroneous conclusions
about what the record does not say. In my view, respondents have
satisfactorily shown a genuine issue of fact as to whether their
injury would likely be redressed by a decision in their favor.
II
The Court concludes that any "procedural injury" suffered by
respondents is insufficient to confer standing. It rejects the view
that the "injury-in-fact requirement [is] satisfied by
congressional conferral upon
all persons of an abstract,
selfcontained, noninstrumental 'right' to have the Executive
observe the procedures required by law."
Ante, at 573.
Whatever the Court might mean with that very broad language, it
cannot be saying that "procedural injuries"
as a class are
necessarily insufficient for purposes of Article III standing.
Most governmental conduct can be classified as "procedural."
Many injuries caused by governmental conduct, therefore, are
categorizable at some level of generality as
602
"procedural" injuries. Yet, these injuries are not categorically
beyond the pale of redress by the federal courts. When the
Government, for example, "procedurally" issues a pollution permit,
those affected by the permittee's pollutants are not without
standing to sue. Only later cases will tell just what the Court
means by its intimation that "procedural" injuries are not
constitutionally cognizable injuries. In the meantime, I have the
greatest of sympathy for the courts across the country that will
struggle to understand the Court's standardless exposition of this
concept today.
The Court expresses concern that allowing judicial enforcement
of "agencies' observance of a particular, statutorily prescribed
procedure" would "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. II, § 3."
Ante,
at 576, 577. In fact, the principal effect of foreclosing judicial
enforcement of such procedures is to transfer power into the hands
of the Executive at the expense-not of the courts-but of Congress,
from which that power originates and emanates.
Under the Court's anachronistically formal view of the
separation of powers, Congress legislates pure, substantive
mandates and has no business structuring the procedural manner in
which the Executive implements these mandates. To be sure, in the
ordinary course, Congress does legislate in black-and-white terms
of affirmative commands or negative prohibitions on the conduct of
officers of the Executive Branch. In complex regulatory areas,
however, Congress often legislates, as it were, in procedural
shades of gray. That is, it sets forth substantive policy goals and
provides for their attainment by requiring Executive Branch
officials to follow certain procedures, for example, in the form of
reporting, consultation, and certification requirements.
The Court recently has considered two such procedurally oriented
statutes. In
Japan Whaling Assn. v.
American Cetacean
Society, 478 U.
S. 221 (1986), the Court examined a
603
statute requiring the Secretary of Commerce to certify to the
President that foreign nations were not conducting fishing
operations or trading which "diminis[h] the effectiveness" of an
international whaling convention.
Id., at 226. The Court
expressly found standing to sue.
Id., at 230-231, n. 4. In
Robertson v.
Methow Valley Citizens Council, 490 U.
S. 332, 348 (1989), this Court considered injury from violation of
the "action-forcing" procedures of the National Environmental
Policy Act (NEPA), in particular the requirements for issuance of
environmental impact statements.
The consultation requirement of § 7 of the Endangered Species
Act is a similar, action-forcing statute. Consultation is designed
as an integral check on federal agency action, ensuring that such
action does not go forward without full consideration of its
effects on listed species. Once consultation is initiated, the
Secretary is under a duty to provide to the action agency "a
written statement setting forth the Secretary's opinion, and a
summary of the information on which the opinion is based, detailing
how the agency action affects the species or its critical habitat."
16 U. S. C. § 1536(b)(3)(A). The Secretary is also obligated to
suggest "reasonable and prudent alternatives" to prevent jeopardy
to listed species.
Ibid. The action agency must undertake as
well its own "biological assessment for the purpose of identifying
any endangered species or threatened species" likely to be affected
by agency action. § 1536(c)(1). After the initiation of
consultation, the action agency "shall not make any irreversible or
irretrievable commitment of resources" which would foreclose the
"formulation or implementation of any reasonable and prudent
alternative measures" to avoid jeopardizing listed species. §
1536(d). These action-forcing procedures are "designed to protect
some threatened concrete interest,"
ante, at 573, n. 8, of
persons who observe and work with endangered or threatened species.
That is why I am mystified by the Court's unsupported conclusion
that "[t]his is not a case where plaintiffs
604
are seeking to enforce a procedural requirement the disregard of
which could impair a separate concrete interest of theirs."
Ante, at 572.
Congress legislates in procedural shades of gray not to
aggrandize its own power but to allow maximum Executive discretion
in the attainment of Congress' legislative goals. Congress could
simply impose a substantive prohibition on Executive conduct; it
could say that no agency action shall result in the loss of more
than 5% of any listed species. Instead, Congress sets forth
substantive guidelines and allows the Executive, within certain
procedural constraints, to decide how best to effectuate the
ultimate goal. See
American Power &
Light Co. v.
SEC, 329 U. S.
90, 105 (1946). The Court never has questioned Congress'
authority to impose such procedural constraints on Executive power.
Just as Congress does not violate separation of powers by
structuring the procedural manner in which the Executive shall
carry out the laws, surely the federal courts do not violate
separation of powers when, at the very instruction and command of
Congress, they enforce these procedures.
To prevent Congress from conferring standing for "procedural
injuries" is another way of saying that Congress may not delegate
to the courts authority deemed "executive" in nature.
Ante,
at 577 (Congress may not "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. II, § 3"). Here
Congress seeks not to delegate "executive" power but only to
strengthen the procedures it has legislatively mandated. "We have
long recognized that the nondelegation doctrine does not prevent
Congress from seeking assistance, within proper limits, from its
coordinate Branches."
Touby v.
United States,
500 U. S. 160,
165 (1991). "Congress does not violate the Constitution merely
because it legislates in broad terms, leaving a certain degree of
discretion to executive
or judicial actors." Ibid. (emphasis
added).
605
Ironically, this Court has previously justified a relaxed review
of congressional delegation to the Executive on grounds that
Congress, in turn, has subjected the exercise of that power to
judicial review.
INS v.
Chadha, 462 U. S. 919, 953954, n.
16 (1983);
American Power &
Light Co. v.
SEC,
329 U. S., at 105-106. The Court's intimation today that
procedural injuries are not constitutionally cognizable threatens
this understanding upon which Congress has undoubtedly relied. In
no sense is the Court's suggestion compelled by our "common
understanding of what activities are appropriate to legislatures,
to executives, and to courts."
Ante, at 560. In my view, it
reflects an unseemly solicitude for an expansion of power of the
Executive Branch.
It is to be hoped that over time the Court will acknowledge that
some classes of procedural duties are so enmeshed with the
prevention of a substantive, concrete harm that an individual
plaintiff may be able to demonstrate a sufficient likelihood of
injury just through the breach of that procedural duty. For
example, in the context of the NEP A requirement of
environmental-impact statements, this Court has acknowledged "it is
now well settled that NEPA itself does not mandate particular
results [and] simply prescribes the necessary process," but
"these procedures are almost certain to affect the agency's
substantive decision." Robertson v.
Methow Valley Citizens
Council, 490 U. S., at 350 (emphasis added). See also
Andrus v.
Sierra Club, 442 U. S. 347, 350-351
(1979) ("If environmental concerns are not interwoven into the
fabric of agency planning, the 'actionforcing' characteristics of
[the environmental-impact statement requirement] would be lost").
This acknowledgment of an inextricable link between procedural and
substantive harm does not reflect improper appellate factfinding.
It reflects nothing more than the proper deference owed to the
judgment of a coordinate branch-Congress-that certain procedures
are directly tied to protection against a substantive harm.
606
In short, determining "injury" for Article III standing purposes
is a fact-specific inquiry. "Typically ... the standing inquiry
requires careful judicial examination of a complaint's allegations
to ascertain whether the particular plaintiff is entitled to an
adjudication of the particular claims asserted."
Allen v.
Wright, 468 U. S., at 752. There may be factual
circumstances in which a congressionally imposed procedural
requirement is so insubstantially connected to the prevention of a
substantive harm that it cannot be said to work any conceivable
injury to an individual litigant. But, as a general matter, the
courts owe substantial deference to Congress' substantive purpose
in imposing a certain procedural requirement. In all events, "[o]ur
separation-ofpowers analysis does not turn on the labeling of an
activity as 'substantive' as opposed to 'procedural.'"
Mistretta v.
United States, 488 U. S. 361, 393
(1989). There is no room for a
per se rule or presumption
excluding injuries labeled "procedural" in nature.
III
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 v.
Madison, 1 Cranch 137, 163 (1803).
I dissent.
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