Bennett v. Spear Page 16

Bennett v. Spear general information

Media for Bennett v. Spear

Audio Transcription for Oral Argument - November 13, 1996 in Bennett v. Spear

Edwin S. Kneedler:

Yes, but let me also say if... even if the citizen suit provision were applicable to administration of the act rather than on-the-ground activities, we think it would be extraordinary for Congress in that situation to have departed from the normal rules for judicial review of agency action and specifically the final agency action point.

And this ties--

William H. Rehnquist:

But citizen suits generally depart from the traditional rules, don't they?

Edwin S. Kneedler:

--Well, they do in a sense, but that can be overstated.

For example, the petitioners in this case specifically endorse the proposition that this Court stated in the Seaclammers case, that the citizen suit provision of the Clean Water Act, which is the foundation for this citizen suit provision, was designed to allow a right of action where that would be true under Sierra Club v. Morton.

Well, in fact, the Sierra Club v. Morton was a suit under section 10 of the APA.

It specifically discussed the zone of interest test and said that the plaintiffs there, even though they're environmental... even though they were environmental interests being advanced, were within that zone of interest.

It was not a repudiation of the zone of interest test but an application of it.

So, when you have this citizen suit provision building on Sierra Club v. Morton, its principal thrust was that environmental interests are a sufficient basis for bringing a suit.

But there's no... particularly against that background, there's no suggestion that the citizen suit provision, even if it were applicable to suits against agencies and their administration of the act, was intended to depart from--

John Paul Stevens:

But you're saying the citizen suit... just to oversimplify a little bit, you're saying the citizen suit provision is a narrower remedy than the remedy under the APA.

Edwin S. Kneedler:

--Yes.

It addresses... and again, it's not designed for... it's not... it may allow broader standing where it applies, but it has a narrow application and the application is very much consistent with--

Antonin Scalia:

Is one-way.

And Congress can write a one-way statute--

Edwin S. Kneedler:

--Yes.

Antonin Scalia:

--if it wants, I presume.

Edwin S. Kneedler:

It can.

And it was addressing a harm that any person, including the United States, might engage in not the special expertise--

Antonin Scalia:

But your position is that the citizen suit provision just changes that one aspect of the APA which deals with zone of interests and only as to certain people, namely, those who are complaining about environmental harm.

Edwin S. Kneedler:

--That's correct.

Antonin Scalia:

And the APA contains a provision, doesn't it, although I think it's rarely cited, that it shall not be superseded except... unless explicitly.

Edwin S. Kneedler:

That's correct.

Antonin Scalia:

So, all of the other provisions would certainly continue to apply, at least where there's no direct conflict.

Edwin S. Kneedler:

That's right.

I'd like to make one other point that ties in here.

The petitioners in their reply brief had suggested that this Court resolve the Article III standing question, and we argued in our brief that there is no causation and redressability for much the same reason we've talked about, that they sued the wrong agency, sued the Fish and Wildlife Service for its advice rather than the Bureau of Reclamation for what it actually did.

That ties directly into our final agency action point.

Antonin Scalia:

They claimed in their complaint that there was causality, and this was dismissed without any further investigation.

They said that there was.