Natural Res. Def. Coun., Inc. v. United States Env. P. Agcy.

• Decision Date: 18 June 1973
• Docket Number: No. 72-1458 to 72-1460.,72-1458 to 72-1460.
• Citation: 481 F.2d 116
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., a non-profit New York Corporation, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Public Service Company of New Mexico, Intervenor in No. 72-1458.
• Court: U.S. Court of Appeals — Tenth Circuit

481 F.2d 116 (1973)

NATURAL RESOURCES DEFENSE COUNCIL, INC., a non-profit New York Corporation, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent Public Service Company of New Mexico, Intervenor in No. 72-1458.

Nos. 72-1458 to 72-1460.

United States Court of Appeals, Tenth Circuit.

Argued March 27, 1973.

Decided June 18, 1973.

Rehearing Denied July 16, 1973.

Richard E. Ayres, New York City, for petitioners.

Edmund B. Clark, Washington, D. C. and G. William Frick, Kansas City, Mo. (Kent Frizzell, Asst. Atty. Gen., Lawrence E. Shearer, Robert L. Klarquist, Martin Green, and Thomas C. Lee, Attys., Dept. of Justice, on the briefs), for respondent.

William K. Stratvert, Albuquerque, N. M. (Keleher & McLeod, William B. Keleher, Albuquerque, N. M., on the brief), for Public Service Co. of New Mexico, intervenor in No. 72-1458.

Before BREITENSTEIN and DOYLE, Circuit Judges, and TALBOT SMITH,^* District Judge.

BREITENSTEIN, Circuit Judge.

Before us are three petitions to review actions of the Administrator of the Environmental Protection Agency approving under the Clean Air Act Amendments of 1970, 42 U.S.C. § 1857c-5, certain portions of the Implementation Plans of three states. No. 72-1458 concerns New Mexico, No. 72-1459 Utah, and No. 72-1460 Colorado. We dismiss each petition for the reason that no petitioner has standing to seek judicial review.

Section 1857c-5 requires each state to adopt and submit to the Administrator a plan for the implementation, maintenance, and enforcement of the national primary and secondary ambient air quality standards in each air quality control region. The Administrator must approve or disapprove the state plans within four months of the date of submission. Each of the three states submitted plans and the Administrator approved parts of each and disapproved other parts. The petitions seek review of the approval of certain portions of the plan for each state.

Review of the Administrator's action is provided by 42 U.S.C. § 1857h-5(b)(1) which says:

"A petition for review of the Administrator\'s action in approving or promulgating any implementation plan under section 1857c-5 * * * may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation or approval, * * *."

Each petition was filed within the requisite time. The New Mexico petition is typical and reads:

"The Natural Resources Defense Council, Project on Clean Air; the New Mexico Citizens for Clean Air; Mr. Ellis Harrington; and Mrs. Laverne Harrington petition this court for review of the rules and regulations promulgated by respondent (37 Fed. Reg.10842 et seq., 40 CFR Part 52, Subchapter C) insofar as they approve the State implementation plan for the State of New Mexico."

Natural Resources Defense Council is a petitioner in each case. The Utah petition names as additional petitioners five individuals and two organizations. The Colorado petition names as additional petitioners two organizations. We note that the briefs in the Colorado case name an individual as a petitioner but the records in the office of the clerk of the court contain no petition for review in which that individual is named as a petitioner. As to each organization, no petition discloses the type or state of organization, its purposes, or its membership. There are no allegations that any of the named individuals are citizens, residents, voters, or taxpayers of any of the affected states. There is no allegation of harm to any individual, to any organization, or to any member of any organization. There is no allegation that any individual or organization is affected or aggrieved by the challenged administrative action. There is no assertion of any constitutional issue.

At the conclusion of the oral argument on the merits of each case, we expressed concern over the standing of petitioners to sue and directed the parties to file briefs on that and other questions. Those briefs have now been filed.

In their supplemental brief, petitioners say that they are submitting separately "a stipulation of facts agreed to by the Department of Justice" which will sustain their claim of "the requisite injury in fact" if the Administrator's actions are allowed to stand. The mentioned stipulation has not been filed. The government's supplemental brief says that "we are not disposed to argue with petitioners that the actual facts will disclose that some of their members or people on whose behalf they petition" have incurred or will incur the requisite injury. The government statement is conclusionary and gives us no facts upon which we can determine standing.

The position of the government is no more than a consent to suit. Existence of jurisdiction is of dominant concern to the courts, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135, and cannot be conferred by consent, American Fire & Casualty Co. v. Flinn, 341 U.S. 6, 17-18, 71 S.Ct. 534, 95 L.Ed. 702. Whether standing be considered as a jurisdictional question going to the existence of a case or controvery and hence within the judicial power under Art. III, § 2, United States Constitution, or a rule of self-restraint, Flast v. Cohen, 392 U.S. 83, 92 n. 6, 88 S.Ct. 1942, 20 L.Ed. 2d 947, the matter is for determination by the courts, not by the parties to the litigation.

Few areas of federal jurisprudence produce more confusion and perplexity than does the concept of "standing to sue." Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947, quotes Prof. Paul A. Freund as saying that standing is one of "the most amorphous concepts in the entire domain of public law." In Data Processing Service v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184, the Supreme Court commented that, "Generalizations about standing to sue are largely worthless as such." The subject has aroused much interest among the commentators. See e. g. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harvard Law Rev. 1265; Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. of Pa. Law Review 1033; Raoul Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement?, 78 Yale Law Journal 816; and The Aftermath of the Clean Air Amendments of 1970: The Federal Courts and Air Pollution, 14 Boston College Ind. and Com. Law Rev. 724.

Before turning to the decisions, we note that in recent years the question of standing has arisen often in cases where jurisdiction was invoked under the Administrative Procedure Act, 5 U.S.C. § 702, which permits judicial review of agency action by a person "adversely affected or aggrieved" by that action. We are concerned with § 1857h-5(b)(1) which does not contain the quoted phrase.

In Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, the Supreme Court ruled that a federal taxpayer is without standing to challenge in federal court the constitutionality of a federal statute. In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, the Court upheld standing to challenge the expenditure of federal funds for the purchase of educational materials for religious and sectarian schools on the ground that the expenditures violated the Establishment and Free Exercise Clauses of the First Amendment. In so holding, the Court treated standing as an aspect of justiciability, 392 U.S. at 98, 88 S.Ct. 1942, and found no Art. III bar "to suit by taxpayers challenging allegedly unconstitutional federal taxing and spending programs." Ibid. at 101, 88 S.Ct. at 1953.

Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184, was an APA case in which the Court upheld standing of a party who claimed economic injury by agency action. The Court said that standing in federal court is to be considered within the framework of Art. III. Ibid. at 151, 90 S.Ct. 827. Apart from the case or controversy test, consideration must be given to whether the interest sought to be protected "is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Ibid. at 153, 90 S.Ct. at 830. The Court also recognized that problems of standing involve a "rule of self-restraint" which the Court applies for its own governance. Ibid. at 154, 90 S.Ct. 827.

Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L.Ed.2d 192, also involved an attack on agency action with jurisdiction invoked under the APA. The Court held that the plaintiffs had a personal stake and interest which "impart the concrete adverseness required by Article III," that the plaintiffs were "within the zone of interests" protected by the statute involved, and that judicial review of the agency action was not precluded by the statute. Ibid. at 164-165, 90 S. Ct. at 836.

In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636, the Supreme Court again dealt with an attack on agency action with jurisdiction invoked under the APA. The Court held that Sierra Club lacked standing to maintain the suit. In so doing it noted the trend to recognize injuries other than economic harm and said that such recognition does not abandon the requirement that a party "seeking review must himself have suffered an injury." Ibid. at 738, 92 S.Ct. at 1368. The Court said that "an organization whose members are injured may represent those members in a proceeding for judicial review," and commented that Sierra Club was a large and long-established organization "with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations." Ibid. at 739, 92 S.Ct. at 1368. The following excerpt summarizes the Court's decision, Ibid. at 740, 92 S.Ct. at 1368:

"The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from

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