Am. Bottom Conservancy v. U.S. Army Corps of Engineers

• Decision Date: 14 June 2011
• Docket Number: No. 10–3488.,10–3488.
• Citation: 650 F.3d 652,73 ERC 1821
• Parties: AMERICAN BOTTOM CONSERVANCY, Plaintiff–Appellant,v.U.S. ARMY CORPS OF ENGINEERS, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

650 F.3d 652

73 ERC 1821

AMERICAN BOTTOM CONSERVANCY, Plaintiff–Appellant,

v.U.S. ARMY CORPS OF ENGINEERS, et al., Defendants–Appellees.

No. 10–3488.

United States Court of Appeals, Seventh Circuit.

Argued April 15, 2011.Decided June 14, 2011.

Elizabeth J. Hubertz (argued), Washington University School of Law, St. Louis, MO, for Plaintiff–Appellant.Thekla Hansen–Young (argued), Department of Justice, Washington, DC, for Defendants–Appellees United States Army Corps of Engineers and Thomas E. O'Hara.Nicholas G. Frey (argued), Stinson Morrison Hecker LLP, St. Louis, MO, for Defendant–Appellee Waste Management of Illinois Incorporated.Before POSNER and MANION, Circuit Judges, and LEFKOW, District Judge. ^*POSNER, Circuit Judge.

The “American Bottom” is a 175–square–mile floodplain of the Mississippi River in southwestern Illinois, across the river from St. Louis. The area contains wetlands (water-saturated soil) that provide habitat for many different species of birds, butterflies, and other wildlife. The American Bottom Conservancy is an environmental organization that seeks to preserve the wetlands. Its members include birdwatchers and other people who enjoy seeing wildlife in the wild.

Waste Management of Illinois, Inc., owns and operates a landfill in the American Bottom that it calls the “Milam Recycling and Disposal Facility.” The landfill, located near the town of Madison, Illinois, is due east of St. Louis and southwest of a state park that contains a large lake—the largest in Illinois, after Lake Michigan. It is called Horseshoe Lake because of its shape (see the first map at the end of this opinion; the maps, though based on the record, are approximations).

Because the Milam landfill is filling up with waste from St. Louis, Waste Management wants to build another landfill—the “North Milam Recycling and Disposal Facility”—on 180 acres of a 220–acre tract (“North Milam”) that it owns just north of the Milam RDF; the tract is thus located between that landfill and the state park. The shortest distance from the site of the proposed new landfill to the park's southern boundary is between a quarter of a mile and half a mile.

The 220–acre tract contains five wetland areas. Almost all of them are in the center and northern parts of the tract, about half a mile from the southernmost part of the state park; and that is the part to which bird- and other wildlife-watchers gravitate because it's away from the park's picnic tables and other clutter, which are near the lake. (The clutter is marked with Xs on the first map.)

Obtaining permission to build a new landfill, and building it, will take time. In the meantime Waste Management wants to remove the soil from some of the wetlands and transport it to its existing landfill to cover layers of waste as they are piled atop that landfill (“daily cover,” as this layering is called). The consequence will be to transform the wetlands into a dry “borrow pit.”

The wetlands occupy 26.8 acres of the tract and Waste Management wants to destroy 18.4 of them (69 percent). But to destroy wetlands it needed a permit from the Army Corps of Engineers. 33 U.S.C. §§ 1311(a), 1344(a), 1362(7); 40 C.F.R. § 230.3(s)(7). The Corps granted the permit on condition that Waste Management create double the amount of wetlands on a nearby tract that it owns that we have marked as the “proposed mitigation area” on the second map. The company accepted the condition.

Once the existing landfill reaches capacity, Waste Management wants to replace it with the new landfill that it seeks to build in the North Milam tract. The Corps of Engineers doesn't authorize landfills. To build the North Milam landfill, Waste Management needs the permission of the Illinois Environmental Protection Agency. 415 ILCS 5/21(d), 5/39(a); 35 Ill. Admin. Code §§ 807.201, 807.202(a); Community Landfill Co. v. Pollution Control Board, 331 Ill.App.3d 1056, 265 Ill.Dec. 193, 772 N.E.2d 231, 234 (2002). The company applied for that permission fifteen months after it had applied to the Corps for the permit to destroy the 18.4 acres of wetlands. Apparently the landfill would not require the destruction of additional wetlands; otherwise Waste Management would have applied for a broader permit from the Corps.

The application for permission to build the new landfill is pending. But Waste Management won't have to—and won't—wait for it to be granted before destroying the wetlands, since it has to do that anyway in order to obtain daily cover for its existing landfill.

American Bottom Conservancy brought this suit to invalidate the permit granted by the Corps of Engineers. The court dismissed the suit without prejudice on the ground that the Conservancy had not established standing to sue under Article III of the Constitution and therefore the suit did not invoke the district court's jurisdiction. The only issue before us is the Conservancy's standing.

Some of the most frequently mentioned grounds for the constitutional doctrine of standing are tenuous, such as that it is derived from Article III's limitation of the federal judicial power to “Cases” and “Controversies,” Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269, 273–75, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008); Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); D.L.S. v. Utah, 374 F.3d 971, 974 (10th Cir.2004); or from the practice of the English royal courts, on which the federal judiciary was modeled, as argued by Justice Frankfurter, concurring in Coleman v. Miller, 307 U.S. 433, 460–61, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), and in Joint Anti–Fascist Refugee Committee v. McGrath, 341 U.S. 123, 150–51, 71 S.Ct. 624, 95 L.Ed. 817 (1951); see Bradley S. Clanton, “Standing and the English Prerogative Writs: The Original Understanding,” 63 Brooklyn L.Rev. 1001, 1031–32 (1997); or from fear that lawsuits wouldn't be vigorously litigated, with the requisite adverseness, unless they involved “tangible” stakes. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); O'Sullivan v. City of Chicago, 396 F.3d 843, 853, 868 (7th Cir.2005); Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Dep't of Labor, 995 F.2d 510, 513 (4th Cir.1993).

All three of these grounds have been subjected to strong criticisms by reputable scholars. On whether standing can be grounded in limitations implicit in Article III's case or controversy requirement see 13A Charles Alan Wright, et al., Federal Practice and Procedure § 3531.1, pp. 56–57 (3d ed. 2008); Robert J. Pushaw, Jr., “Article III's Case/Controversy Distinction and the Dual Functions of Federal Courts,” 69 Notre Dame L.Rev. 447, 512–17 (1994); Steven L. Winter, “The Metaphor of Standing and the Problem of Self–Governance,” 40 Stan. L.Rev. 1371, 1376–77 and n. 26, 1418–25 (1988). On whether it can be grounded in the practice of English royal courts and early American courts see id.; Louis L. Jaffe, “Standing To Secure Judicial Review: Public Actions,” 74 Harv. L.Rev. 1265, 1270 (1961) (“I have encountered no case before 1807 in which the standing of the plaintiff is mooted, though the lists of cases in the digests strongly suggest the possibility that the plaintiff in some of them was without a personal interest”); Raoul Berger, “Standing to Sue in Public Actions: Is It a Constitutional Requirement?,” 78 Yale L.J. 816, 827 (1969). And on whether it can be grounded in fear that parties without a tangible stake would litigate with insufficient energy see 13A Charles Alan Wright et al., supra, § 3531.3, pp. 126–28; Abram Chayes, “The Supreme Court, 1981 Term—Foreword: Public Law Litigation and the Burger Court,” 96 Harv. L.Rev. 4, 24–26 (1982).

This isn't to say that the doctrine of standing isn't well grounded. But the solidest grounds are practical (just like the avowedly prudential grounds for judge-made supplements to the Article III standard, MainStreet Organization of Realtors v. Calumet City, 505 F.3d 742, 744–46 (7th Cir.2007)). The doctrine is needed to limit premature judicial interference with legislation, to prevent the federal courts from being overwhelmed by cases, and to ensure that the legal remedies of primary victims of wrongful conduct will not be usurped by persons trivially or not at all harmed by the wrong complained of. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., supra, 454 U.S. at 473, 102 S.Ct. 752; North Shore Gas Co. v. EPA, 930 F.2d 1239, 1242 (7th Cir.1991); Daniel E. Ho & Erica L. Ross, “Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of the Evolution of Standing, 1921–2006,” 62 Stan. L.Rev. 591, 597–99, 604–07 (2010); Richard H. Fallon, Jr., “The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights,” 92 Va. L.Rev. 633, 673–74 (2006); Cass R. Sunstein, “What's Standing After Lujan? Of Citizen Suits, ‘Injuries,’ and Article III,” 91 Mich. L.Rev. 163, 179–80 (1992). “During the twentieth century, courts became self-conscious about the concept of standing only after developments in the legal culture subjected the private law model to unfamiliar strains.” Richard H. Fallon, Jr., et al., Hart & Wechsler's The Federal Courts and the Federal System 114 (7th ed. 2009).

Consistent with the practical as well as doctrinal thinking behind the requirement of standing, a plaintiff, to establish Article III standing to sue, must allege, and if the allegation is contested must present evidence, that the relief he seeks will if granted avert or mitigate or compensate him for an injury—though not necessarily a great injury—caused or likely to be caused by the defendant. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Imagine an environmental...