Lujan v. Defenders of Wildlife – Oral Argument – December 03, 1991

Media for Lujan v. Defenders of Wildlife

Audio Transcription for Opinion Announcement – June 12, 1992 in Lujan v. Defenders of Wildlife

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William H. Rehnquist:

We’ll hear argument first this morning in No. 90-1424, Manuel Lujan v. The Defenders of Wildlife.

Mr. Kneedler.

Edwin S. Kneedler:

Thank you, Mr. Chief Justice, and may it please the Court:

The Eighth Circuit, in this case, invalidated a regulation issued by the Secretary of the Interior in 1986 to interpret the geographic reach of the first sentence of section 7(a)(2) of the Endangered Species Act of 1973.

That sentence provides that each Federal agency, in consultation with the Secretary, shall ensure that any action it authorizes, funds, or carries out, is not likely to have either one of two consequences: first, jeopardize an endangered or threatened species or, second, adversely modify habitat that is determined by the Secretary, after consultation with affected States, to be critical for the species.

The Secretary, from the outset, has construed the portion of section 7(a)(2) that concerns critical habitat of a species not to apply in foreign countries, because the reference to affected States gives it a domestic focus, and because application in foreign countries would present practical difficulties and impose this Nation’s environmental laws and land use planning on foreign countries.

Neither respondents nor the courts below have challenged that construction.

In the 1986 interpretive regulation at issue here, the Secretary concluded, for similar reasons, that the portion of the same sentence that concerns actions that affect the species themselves likewise does not apply in foreign countries.

The court of appeals invalidated that interpretation, thereby setting aside the uniform interpretation of not only the agencies charged with administering the act, but also the agencies engaged in furnishing assistance to foreign governments for projects in their countries.

The court of appeals erred in two fundamental respects.

First, the court should not have even reached the merits of the validity of the regulation, because the respondent organizations do not have standing to challenge it.

The respondent organizations wholly failed to carry their burden of showing that any of their members suffered actual or threatened injury as the result of U.S. assistance to a project in a foreign country affecting their ability to view wildlife.

Sandra Day O’Connor:

Mr. Kneedler, how does the citizens’ suit provisions affect the standing inquiry?

Edwin S. Kneedler:

In the first place, we think the citizen suit provision is inapplicable in this case because that refers to situations generally where persons alleged to be in violation of the act.

The Secretary’s interpretive regulation, which he wasn’t even required to issue in the first place, in our view, does not fall within the citizens’ suit provision.

The provision that addresses the Secretary’s enforcement responsibilities, which is what respondents seem to be directing their suit to, does not govern this sort of regulation.

It governs a specific category of regulations under section 4 of the act.

So in the first place, we think the citizens’ suit provision is inapplicable here.

But moreover, the citizens’ suit provision, as this Court has made clear in Sea Clammers and other cases, cannot extend the standing… the jurisdiction, case or controversy requirement… jurisdiction under the case or controversy requirement beyond that specified in this Court’s cases.

So the–

Sandra Day O’Connor:

Well, I guess it could, though, provide that abridgement of the right that Congress has given would constitute injury.

Edwin S. Kneedler:

–Well, what would be… to be sure, if the statute defines a statutory right and then says that a person may sue for a violation–

Yes.

Edwin S. Kneedler:

–of that right, then standing would result because Congress has defined the right.

But this… the citizens’ suit provision does not define any substantive rights.

Just as this Court said in Valley Forge, the APA provision, giving any person aggrieved a right to sue, does not define substantive rights, it simply creates a cause of action.

So respondents would be required to look elsewhere in the Endangered Species Act for any substantive rights that they would seek to invoke in this case.

At one point, respondents were arguing that they had certain procedural rights to have one agency consult with another regarding projects in foreign countries.

As we pointed out in our petition and brief, that holding by the Eighth Circuit to that effect was inconsistent with every other court of appeals that has considered it.

And respondents do not, as we understand it, defend it here, because procedural rights can only be invoked by persons who have a substantive stake in the agency’s decision.

Edwin S. Kneedler:

So unless respondents can show that some of their members had an actual stake in a foreign project and were injured there, the fact that there might be procedural provisions under the act would not be sufficient to give them standing.

So to come back to your question, and argue this case does not arise under the citizens’ suit provision.

It’s essentially an APA challenge to a regulation.

And as such, as a… if the A… regulation is the agency action, this Court has made clear, just two terms ago in the National Wildlife Federation case, that unless a statute specifically provides for a… challenge to a regulation as soon as it’s issued, ordinarily a person has to wait until the regulation has been applied to his particular case.

Sandra Day O’Connor:

Well, I understood the respondents to argue that section 7(a)(2) provides that each Federal agency shall consult with the Secretary when action or funding is likely to jeopardize the continuation of an endangered species.

Edwin S. Kneedler:

That’s correct.

Sandra Day O’Connor:

And they think that is the substantive right that they’re seeking to enforce under the citizens’ suit provision.

Edwin S. Kneedler:

Well, if an agency that was otherwise required to do so did not consult or took action that would jeopardize a species, that would be a violation of the act.

But again, respondents have not sued an action agency, seeking prevent what they claim would be a violation of the act by that agency… the engaging in a project in a foreign country without the necessary consultation.

They’ve sued the Secretary of the Interior, who has simply issued an interpretive regulation stating what he believes to be the content of the section 7(a)(2) requirement.

But the… but the Secretary of the Interior cannot require another agency to consult with the Secretary about a project.

So whatever may be the case in a dispute about a particular project, which, again, we don’t have here–

Sandra Day O’Connor:

We did.

Do you think that the citizens’ suit provision would enable a citizen to sue because the… a Federal agency had failed to consult?

Edwin S. Kneedler:

–It would confer a right of action.

But again, the article III standing requirements would have to be met.

And as this Court has made clear, there are three essential standing requirements that, even under a citizens’ suit, a plaintiff has to meet.

First, the plaintiff must show that he has suffered some actual or threatened injury; second, he must show that that injury is fairly traceable to the challenged action; and third, he must show that that injury… there’s a likelihood that that injury will be redressed by a decision in his favor.

And we’ve shown in our brief that respondents here satisfy none of those requirements with respect to any of their members in foreign countries.

Respondents, in their brief, focus on two of Defenders’ members in an effort to establish standing… excuse me, focus on five.

The court of appeals found standing only on the basis of two.

It rejected the third, Mr. Plowden, on the ground that he hadn’t even gotten within 200 miles of the project in question.

And any nexus that the remaining two might have had to a project was so insubstantial that the court of appeals didn’t even address it.

So this case… respondent’s standing would depend entirely on the ability to establish that two members that the court of appeals focused on had standing in their own right.

And those two members fail each step.

These two are Joyce Kelly and Amy Skilbred.

Joyce Kelly’s entire basis for standing is one paragraph in an affidavit that appears at one… page 101 of the joint appendix.

In that… in her affidavit, Joyce Kelly makes no allegation that on her visit to the Nile River in 1986 she was harmed at all in her viewing of any endangered species.

All she says was that I will suffer harm.

And with respect to future injuries, she says I will suffer harm as a result of U.S. Bureau of Reclamation assistance in rehabilitating the Aswan Dam Hydroelectric Power… Power Plant.

Edwin S. Kneedler:

There’s no indication in her affidavit, or in the Bureau of Reclamation report which she references, that that rehabilitation would have any effect, whatever, on an endangered species, and specifically, the Nile crocodile.

Moreover, Joyce Kelly has not shown that she actually has firm plans to return to Egypt.

All she says is that I have observed the traditional habitat of the Nile crocodile, and I intend to do so again.

I plan to return to Egypt.

William H. Rehnquist:

Does she say when she observed–

Edwin S. Kneedler:

She did not say when she intended to return to Egypt.

It’s–

William H. Rehnquist:

–Did she say when in the past she had observed it?

Edwin S. Kneedler:

–She said that she had travelled to Egypt in 1986.

Now… so she hasn’t shown either actual injury in the past… she didn’t claim it… or future injury.

Because, as this Court has said, with respect to threatened injury, the threat has to be real and immediate.

The injury has to be certainly impending… which suggests that any injury has to be immediately forthcoming.

The sort of vague, unspecific allegation or assertion that Joyce Kelly makes here, that she intends to return sometime in the future, falls far short of that necessary to establish a concrete threat of future injury.

John Paul Stevens:

What would… could she possibly satisfy?

What if she’d actually seen some crocodiles, and she said they’re going to be building the dam until 1991 and she plans to go back in 1990, or something.

Would that have been enough?

Edwin S. Kneedler:

Well, first of all, the mere fact that she visited in the past is not, alone, enough, as this court said in Lyons.

If this was a damage action, a past… past injury may be relevant.

But for future injunctive relief, the past injury is not sufficient.

But with respect to future injury, we think at a minimum there has to be a definitive and concrete plan.

And picking up on this Court’s language that the threatened injury has to be real and immediate, we think that the… that the injury… that the threatened injury–

John Paul Stevens:

Well, how could the injury… I mean, the project is going to take several years to complete.

And she couldn’t be injured… her theory is that she’s injured by the completion of the project, as I understand.

It may kill off the crocodiles.

And if she’s seen crocodiles the last time, she says sometime a couple of years from now, she wants to go back and take pictures of them and make studies, that wouldn’t be enough?

Edwin S. Kneedler:

–Well, there are two aspects of the injury problem.

One is the threat that the agency’s project might have an effect on species.

But there’s the further requirement that she, personally, suffer injury.

And if she doesn’t plan to visit the project for 5 years–

John Paul Stevens:

Well, let’s get one thing I’m troubled by.

John Paul Stevens:

Supposing the injury is she won’t be able to see any more crocodiles.

She likes to look at crocodiles or make studies of them.

Is that an injury that’s cognizable?

Edwin S. Kneedler:

–It is the sort of injury, yes, that would be cognizable under the act.

John Paul Stevens:

Well, then why does she have to say any more than she thinks there’s a danger that if you don’t consult and you don’t avoid the environmental hazard and so on and so forth, the crocodiles may become extinct, and I can’t see any more crocodiles?

Edwin S. Kneedler:

She would have to show both that and the–

Antonin Scalia:

She’d have to prove that there would be the adverse consequence.

I thought the statute was designed to avoid… you know, minimize the danger that that would happen.

Edwin S. Kneedler:

–Well, she would have to show, at least, that there was a likelihood of some… of some adverse impact.

That’s the standard that triggers the consultation requirement in the first place.

So if she’s relying just on injury to the species, rather than her use of the land, which she’s not alleging here… just injury to the species, she would have to show some injury to the species.

But beyond that, she would also have to show–

John Paul Stevens:

She’s kind of asked to do her own environmental impact study.

Edwin S. Kneedler:

–Well, but she is the one who’s claiming the injury.

The burden is on her.

John Paul Stevens:

Well, I think she… relying on risk of injury unless adequate is made first to determine whether or not those injuries would occur.

That’s not enough, in your view.

She has to… she has the affirmative burden of establishing injury as a result of the project.

Edwin S. Kneedler:

At least a likelihood of injury, we submit.

And again, the… under this Court’s standing doctrine, the Court has reiterated just last term, the Court presumes it doesn’t have jurisdiction unless it affirmatively appears in the record, and it’s up to the person invoking the jurisdiction of the Court to show the injury.

So in this case, she has to show some injury.

And a risk to animals does not translate into injury to a human being.

Byron R. White:

Wouldn’t she also have to at least suggest how the Bureau’s… Bureau of Reclamation’s involvement in this dam might hurt the crocodile?

Edwin S. Kneedler:

Yes, she would.

She would have to show that if she was challenging the project itself… again, she’s challenging a regulation, which is even one more step removed.

But assuming she was challenging the regulation… I mean the project… she would have to show that the injury is fairly traceable to the Bureau of Reclamation’s assistance, and would be likely to be cured by either a withdrawal of the assistance or consultation, or at least by the withdrawal of the assistance.

And that she can’t show, both because the Bureau of Reclamation is an independent actor.

But beyond that, we have here foreign sovereigns who have it within their own power, as respondents concede, to go forward or not to go forward, to seek funding from other sources.

So… but going back to the–

William H. Rehnquist:

She is not challenging the repair of the Aswan… the specific project.

William H. Rehnquist:

She is just challenging a regular… an interpretive regulation issued by the Secretary of the Interior.

Edwin S. Kneedler:

–That… that’s correct.

And the same thing is true with Amy Skilbred, with respect to the Mahaweli project.

She hasn’t brought this suit to try to enjoin the… U.S. AID from furnishing assistance to the Mahaweli project.

She’s brought this suit to challenge an interpretive regulation… or the respondent organizations have.

And they have used these two projects as being illustrative of the sort of projects that the U.S. may engage in overseas.

But the fact that the respondents have challenged the Secretary’s regulation, and the court entertained the suit in that context, really converts the court of appeals’ disagreement with the Secretary’s interpretation into nothing more than an advisory opinion.

Because these respondents do not–

John Paul Stevens:

Would it be part of… would it be part of her burden to also prove that the foreign government could no get financing elsewhere?

Because I guess it’s always… there’s always a possibility that the government could build its own dams and all the rest of it without American money.

Edwin S. Kneedler:

–Well, the–

John Paul Stevens:

Would that be part of her burden?

Edwin S. Kneedler:

–Yes, it would.

And in fact, when it comes to the actions of a foreign country, we think that as a matter of law, she could not show that, for reasons derived from this Court’s act of state and political question doctrines.

A U.S. court should not presume to decide and receive evidence on the question of whether a foreign sovereign is likely or not likely to undertake a project on its own soil with… seeking other foreign assistance.

But beyond that, under this… under this Court’s decisions in Allen v. Wright and Simon v. Eastern Kentucky Welfare, even in a wholly domestic context, the Court has made clear that, at the very least, the plaintiff bears the burden of showing that the actions of a third party are so likely to happen that the injury will be redressed by the relief.

And respondents have fallen wholly short in this case of showing that.

In fact, this is a particularly improbable case for making such a showing.

The Mahaweli project… the U.S. Government has furnished less than 10 percent of the overall assistance to that project.

William H. Rehnquist:

Where is the Mahaweli project?

Edwin S. Kneedler:

I’m sorry.

It’s in Sri Lanka on the Mahaweli River in Sri Lanka.

So… and again, Amy Skilbred did not allege that she suffered any injury with… on her visit to Sri Lanka and her ability to view wildlife back in 1981.

And she also said in her deposition, at pages 65 to 67, that she had no concrete plans to return.

She said she hoped to return some day, but she had no concrete plans.

Again, the requirement of a threatened injury… going back to Justice Stevens’ question… is not just the threat that the agency’s action will have some impact on species, but also that she, personally, will suffer the injury which, at the very least, requires a showing that the visit to the foreign project is imminent, and therefore that the injury is imminent.

Should the Court disagree with our position that the respondent organizations do not have standing in this case, it would then be necessary to reach the merits of the scope, geographic scope, of section 7(a)(2).

In our… in our view, the court of appeals seriously erred in its resolution of the merits, as well.

This Court reiterated–

Antonin Scalia:

Mr. Kneedler, is there any other way we might, one day, reach that question?

Edwin S. Kneedler:

–It’s possible that that could arise, if… for example, if there was a project undertaken directly by the foreign government… I mean, excuse me… by the U.S. agency, not a foreign government, which is not the case here.

For example, a U.S. constructed project in a foreign country, and a plaintiff showed the requisite personal injury, actual injury.

Then, just as in the Teleco Dam case in a domestic project, we think it’s possible that a plaintiff would have standing.

So this… our position here does not rule out that possibility.

But in a situation such as this, where the project is undertaken by the foreign government, only with the financial assistance of the U.S. Government, we think that the elements of causation and redressability are far too attenuated.

But on the merits, the Court reiterated just last term in the ARAMCO case, that it’s an established principle of American law that acts of Congress are presumed not to apply in foreign countries, absent an affirmative intention of Congress to the contrary that has been clearly expressed.

Harry A. Blackmun:

Mr. Kneedler, if in place of Sri Lanka and Egypt this were Antarctica, what would be your position?

Edwin S. Kneedler:

The same position.

It’s outside… it’s outside the territorial jurisdiction of the United States.

Harry A. Blackmun:

But no foreign country?

Edwin S. Kneedler:

But no foreign country.

Now, we had taken the position that the consultation requirement applies on the high seas.

I… let me correct that.

I’m not sure that we’ve taken a position on whether it would apply in Antarctica.

I know I’ve taken the position that NEPA does not apply there, so I would assume that we would take the same position here.

But I’m not certain.

Harry A. Blackmun:

Well, you have taken the position it applies on the high seas?

Edwin S. Kneedler:

Yes, we have.

Harry A. Blackmun:

And yet there’s no clear statement to that effect in the statute–

Edwin S. Kneedler:

There’s not… and of course, that’s not in issue here.

But we think that some support for that can be obtained from what is the closely parallel provision of the act that governs the taking of endangered species.

The section 9(a)(1) of the act prohibits the taking of protected species by a person subject to the jurisdiction of the United States, either when it’s in the territory of the United States, or on the high seas.

But conspicuously absent, missing from the statute, is any prohibition against the taking of a species in a foreign country, presumably because the regulation of the taking of species in a foreign country would be something that would be subject to the laws of that country, which was something that the CITES, the Convention on International Trade in Endangered Species, makes clear, that the trade–

Harry A. Blackmun:

–But presumably, there’s no law in Antarctica, anyway.

Edwin S. Kneedler:

–Well, in Antarctica, but in terms of the general proposition, in foreign countries there would be such law.

And on the high seas, there’s no governing law, and therefore no direct conflict with the controlling law of another sovereign.

Sandra Day O’Connor:

Well, Mr. Kneedler, the 1978 amendments presume that some agency action will be taken… will take place outside of any State, and outside of any circuit.

Edwin S. Kneedler:

That’s correct, in the judicial review provisions–

Yes.

Edwin S. Kneedler:

–and the consultation provisions.

Edwin S. Kneedler:

But that falls far short of suggesting that it covers actions in foreign countries.

Again, this ties into the position that it could apply in territories–

Sandra Day O’Connor:

Well, it certainly isn’t clear that it’s limited to the Outer Continental Shelf.

I think that’s kind of an odd interpretation.

It must mean something.

Edwin S. Kneedler:

–Well–

Sandra Day O’Connor:

Didn’t the Secretary take the position for some years that it did apply overseas?

Edwin S. Kneedler:

–The Secretary… the Secretary initially took the position in 1978 regulations that it did.

But that position was greatly objected to by the State Department, Defense Department, and others.

The Solicitor of the Interior promptly ordered a reconsideration of that in 1979.

And that official position of the Interior Department was reversed in 1981.

And then in nine… in these 1986 regulations, that new position was stated.

Now, under Chevron, that agency position is entitled to considerable deference.

And it is not… it does not fatally undermine that position that the Secretary changed positions.

He had good reasons for doing so.

One thing–

Harry A. Blackmun:

Weren’t they due to a change in the administration, in your view?

Edwin S. Kneedler:

–No, what… the opinion itself states that the precipitating factor or the basis in the statutory text was the 1978 amendments to the Endangered Species Act, which simply reconfirmed the domestic focus of section 7.

Section 7 as originally passed referred only to affected States.

In 1978, Congress adopted an elaborate exemption provision to allow for projects to go forward, notwithstanding the strict, substantive standard in section 7.

And those elaborate exemption provisions, themselves, have a domestic focus, by providing for a representative of an affected State on the Endangered Species Committee, by providing for notification to the Governor of the affected State, but not the foreign countries.

But again, going back to Justice O’Connor’s question, the reference to the State, if any, in which the action occurs, is certainly far less compelling, frankly, than the alien exemption under title VII in last term’s ARAMCO case.

And yet the Court found that to be… to be insufficient to overcome the presumption that the act does not apply.

Again, the burden is on the respondents in this case to show that Congress affirmatively intended the act to apply overseas.

They’ve pointed to nothing in the text of section 7 or 7(a)(2), nothing in the legislative history of section 7(a)(2), and nothing in the background of the conventions that the Endangered Act was designed to implement, to support the contention that Congress specifically intended section 7(a)(2) to apply overseas.

That, in our view, is the end of the matter, as it was in ARAMCO because an affirmative indication is required.

But even–

John Paul Stevens:

They do have the argument, don’t they, that the interpretation that it applied abroad had issued before the… statute was amended and was amended without… without comment on that?

So it’s an argument that they assumed that it applied overseas.

Edwin S. Kneedler:

–But there’s no indication that Congress was aware of that interpretation.

Edwin S. Kneedler:

And again, given the presumption, it has to be Congress, itself, that affirmatively chooses to extend–

John Paul Stevens:

Is there a presumption that Congress would be aware of regulations implementing an earlier statute?

Edwin S. Kneedler:

–Well, this Court has, on occasion, looked to that fact.

But particularly in this context, where there’s no affirmative indication, at all, that Congress was aware of it, much less that it wanted to–

John Paul Stevens:

No, I know there’s no affirm… I’m just asking if there’s a presumption that Congress knows what the law is.

Edwin S. Kneedler:

–I don’t know that it’s a presumption in the sense that it’s a legal presumption that operates here.

There is an assumption, I guess, in certain situations.

But I think that that… that that background is simply not involved here.

The respondents rely on a passage in the conference report on the 1978 amendments, for example, that refer to the conferees’ decision to retain language in the Senate bill.

Well, what the Senate bill was proposing to delete, that the conference report language refers to, was the whole reference to consultation between agencies and the Secretaries.

Well, that’s… that… that perhaps inadvertent deletion of the whole consultation process is something quite different from suggesting that Congress intended to apply this specific provision of the act overseas.

Again, the reference in section 7(a)(2) of the act, itself, to affected States, gives that section… gives that sentence a domestic focus.

And respondents here, are trying to make the improbably argument that Congress, in another portion of the very same sentence intended the agency’s obligations to have a vastly different geographic reach, since the critical habitat portion of that sentence concededly does not apply in foreign countries.

Yet, they’re arguing that the protection for the species, themselves, the species that would use that habitat, does apply in foreign countries.

It’s also important to point out the practical difficulties and serious interference with foreign relations that would result from applying section 7(a)(2) in this setting.

And those are concerns that were discussed recently in the dissenting opinion in ARAMCO last term… which even though disagreed with a particular presumption in that case, acknowledged that where an act would interfere with the conduct of the Nation’s foreign relations and diplomacy, the act should not be presumed to apply.

And that is directly true here.

Because a rigid… an application of section 7’s rigid, substantive standard, and elaborate domestically focused procedural provisions to projects in foreign countries, would interfere with the flexibility and responsiveness of American foreign policy.

After all, foreign aid is… does not stand in isolation.

It’s part of a broader diplomatic initiative.

And the application of 7(a)(2) would interfere with those initiatives.

I’d like to reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Kneedler.

Mr. O’Neill, we’ll hear from you now.

Brian B. O’Neill:

Mr. Chief Justice, and may it please the Court:

I’d like to start with Amy Skilbred and the Mahaweli project.

Ms. Skilbred is a Defenders’ member, and a professional wildlife biologist who visited Sri Lanka in 1981 and 1982, and visited the Mahaweli project site.

She was deposed, and at her deposition she testified that she confirmed her visit to the project site by looking at the AID project documents.

So Ms. Skilbred went to the site, and she went to the site for the purpose of studying endangered species and their habitat.

Concededly, she didn’t see any endangered species at the site, but that’s why she was there.

Brian B. O’Neill:

To require her to actually find the endangered species is sort of a catch-22 because if they were easy to find, they wouldn’t be endangered.

Ms. Skilbred wants to return.

And in her deposition she stated that the reason that she could not return, or could not have present plans to return to the Mahaweli project was because there was an ongoing civil war.

So to say that she doesn’t have an intent to return is to misstate the record.

She does intend to return.

She couldn’t return at the time of her deposition because of the civil war.

William H. Rehnquist:

Did she say anything more specific about her plan to return than that, other than that she planned to… as I understand it from the Solicitor General, she said she did not have any definite plan to return.

Did she say anything more?

Brian B. O’Neill:

She said, specifically, I can’t return now because of the civil war.

And in answer to the question, and for what purpose would you like to go back to Sri Lanka to visit the Mahaweli project, she answered, I’d rather go back to visit the wildlife that live in the area of the Mahaweli project.

She did not have a plane ticket.

William H. Rehnquist:

Well, she not only didn’t have a plan ticket, she didn’t have any plan, it sounds from that.

Brian B. O’Neill:

One of the deponents, Steven Schroer had a plane ticket, and had a passport.

William H. Rehnquist:

Well, did the Eighth Circuit grant him… grant your organization standing on his behalf?

Brian B. O’Neill:

No, sir, they did not.

William H. Rehnquist:

Did you cross-appeal?

Brian B. O’Neill:

No, we did not.

William H. Rehnquist:

Then I don’t think he can be involved in this case.

Brian B. O’Neill:

I’d respectfully offer the following proposition: the Eighth Circuit sustained the organization’s standing.

We won below, and any grounds that can be used to sustain the verdict below, ought to be used by this Court.

William H. Rehnquist:

So you say that you can invoke different persons who may have been deposed, since what we’re talking about is organizational standing.

And the Eighth Circuit sustained your organization’s standing?

Brian B. O’Neill:

That’s our position, Your Honor.

We can invoke any individual, so long as there was an adequate record before the district court.

And Mr. Schroer’s deposition, like Ms. Skilbred’s deposition, was lodged with the district court.

With regard to the Mahaweli project–

William H. Rehnquist:

If you want to speak about Mr…. the gentleman you just spoke–

Brian B. O’Neill:

–Schroer was to visit a World Bank project, I believe in Thailand, and had a ticket to Thailand, and had a passport at the time of his deposition.

William H. Rehnquist:

–Well, but the World Bank isn’t a United States agency.

Brian B. O’Neill:

No, but the Treasury Department funds the World Bank.

Brian B. O’Neill:

The Treasury… and the statute, section 7, deals with any agency action that authorized funds or carries out a project.

William H. Rehnquist:

Well, this sounds very much like the house that Jack built.

[Laughter]

We’re talking about an Interior Department, Interior… interpretive regulation.

And you’re telling us that the World Bank was going to fund a project in Thailand.

I mean, there just seems to be a great deal of distance between the two.

Brian B. O’Neill:

We disagree that it is an interpretive regulation.

And, indeed, when the Interior Department published the regulation, in the preamble to the regulation in the Federal Register, the Interior Department took the position that the regulation was binding on other Federal agencies.

William H. Rehnquist:

Does it still take that position?

Brian B. O’Neill:

It doesn’t before this Court.

But there’s nothing published in any new preamble, or in any new regulations.

But the position that they took in the preamble to the ’86 regulation, and it’s… and the proposed rule, was that it was a regulation that was binding on all of the Federal agencies, in response to the specific suggestion by other agencies that the Interior Department ought to make these nonbinding guidelines.

Antonin Scalia:

How could the Interior Department bind other agencies in this regard?

I mean, I think the Interior Department can say, you know, whether it will consult or not.

But I don’t see how the Interior Department can bind them not to do the funding.

Brian B. O’Neill:

The Interior Department is given authority in both sections 4 and 7 of the regulations to publish rules implementing the statute.

And the position that the Interior Department took in the preamble to its 1986 regulations and the proposed regulations, was that that’s specifically what it was doing.

It was implementing the statute, and it was given that authority by the Congress.

That’s the Department’s position.

Antonin Scalia:

If the Interior Department had not issued these regulations, one of the points made by the Government is there’s… there’s nothing to show that the agencies, themselves, would not have adopted the position taken in the regulation.

Brian B. O’Neill:

That’s–

Antonin Scalia:

In which case they would not consult, in which case you’d have the same result you have here.

Brian B. O’Neill:

–That’s a correct statement.

Antonin Scalia:

Well, if that’s a correct statement, then you haven’t met one of the conditions for standing, is… which is that the injury you complain about would not occur if the relief you were given is accorded.

Brian B. O’Neill:

What–

Antonin Scalia:

What you’ve just said is that whether the… whether the Secretary has this regulation out or not, it may well be that these agencies won’t consult.

Brian B. O’Neill:

–Well, let me address that.

The first answer to that is that the Secretary’s position is that the rules are legally binding.

The second answer to that is right now, the Secretary refuses to consult–

Antonin Scalia:

Excuse me.

Antonin Scalia:

It doesn’t matter what the Secretary’s position is.

The point is, if the agencies… have that same position, they are not going to consult.

And therefore, just getting the Secretary to change his mind is not going to give you the relief you want.

The agencies may still not consult.

Brian B. O’Neill:

–It gives… we are not required to address every aspect of our injury.

By getting the Secretary to change the regulation, we, for the first time in a number of years, make consultation available to the agencies.

Right now, the Secretary has published a refusal to consult.

The Secretary is, in essence, a scofflaw, and says I’m not going to result… I’m not going to consult, and has done so formally.

So the regulation is a harm, because the consultation service is not available to the other Federal agencies.

That’s a harm.

The second harm is that so long as the consultation service is not available to the other agencies, nobody’s going to consult.

And nobody now does consult.

And species are at risk because the one–

Antonin Scalia:

But you can attack that when somebody doesn’t consult, goes ahead and funds a project.

And then you can attack that agency that funds the project.

But trying to do that indirectly by attacking the Secretary, when you don’t know… the agency might go ahead and adopt the same interpretation of the law that the Secretary has adopted.

It’s very likely that the agency would.

Even if the… even if the Secretary withdrew this, it seems to me very likely that the other agencies of Government… regardless of his regulation… would continue to adopt the same position.

So this Court would have issued an opinion, spun its wheels, for no benefit whatever.

Brian B. O’Neill:

–The initial reason that nobody consults today is that the service is not available, because the Secretary, by regulation, refuses to make it available.

Antonin Scalia:

Well, we don’t know that.

They may not be consulting simply because they agree with the Secretary… since they’re in the same Government as the Secretary, I bet you they do.

So even if he… even if he withdrew this regulation, you’re going to have the same result.

Brian B. O’Neill:

Well, then you have a situation where you have the whole Government refusing to comply with the statute–

Antonin Scalia:

And you have a means of challenging that.

If and when an agency goes ahead and funds a project without consulting, go get them.

Brian B. O’Neill:

–I agree that we have that means of challenging the project.

In addition, we are challenging the Secretary’s position in a way that such agency decisions has been challenged since Abbott Laboratories.

And we had the same kind of a situation here that the Court had in Abbott Laboratories.

We have a legal construction of a statute.

Brian B. O’Neill:

We have a final regulation, which you didn’t have in Lujan v. National Wildlife Federation.

There’s nothing else that can be brought to the party to help with regard to the interpretation of the statute.

And there is ongoing harm… that is, the consultation process, which is the remedy that the Congress enacted to solve the problem of extinction, is not in place.

So while we can sue, with regard to a specific project, we’ve chosen this route.

And this route has been sanctioned in Abbott Laboratores; this route was sanctioned months before we filed this civil action in the Japanese Whaling v. American Cetacean case, which Defenders and HSUS were plaintiffs in.

Antonin Scalia:

But Lab says you can challenge a rule, but… in Abbott Labs, by striking down the rule, we would… we eliminated the obstacle that the plaintiffs were complaining about… namely, they thought that they could not issue these pharmaceuticals with these labels, because the Secretary had said if you do, you’ll be prosecuted.

Once we struck that down, that obstacle was eliminated.

What I’m suggesting to you is that we can strike down this regulation and we don’t know that the obstacle will be eliminated.

The other… crucial to the relief you want is that the agency consult.

And if the agencies have the same view of the law that the Secretary does… and it seems to me quite likely that they do… you’re wasting our time.

We can give you everything you ask, and nothing will change.

Brian B. O’Neill:

I hope I’m not wasting your time.

There is a chance that the agencies will not consult if this Court affirms the Eighth Circuit.

That’s a fact.

John Paul Stevens:

You’re presuming that those agencies would disregard a decision of this Court interpreting that statute?

Brian B. O’Neill:

I said there was a chance.

I think it’s extremely unlikely.

John Paul Stevens:

I don’t think that’s a reasonable presumption, is it, that the agencies would xx to follow our interpretation of the law?

Brian B. O’Neill:

The Justice… I would assume that, if this Court rules, that’s the end of the subject.

The Secretary will issue a regulation, the agencies will comply with the regulation, the Secretary will begin to consult, and endangered species will begin to be protected worldwide like the statute requires.

As to whether there is a possibility on the outskirts of reality that the agencies won’t comply, the answer to that is there is a possibility.

But it is extremely unlikely.

I’d like to talk for a minute about the statute.

The statute that’s at issue is essentially the fourth iteration of the Endangered Species Act.

There was an iteration issued in ’66, an iteration issued in ’69.

The iteration in ’69 created a listing process.

And under the ’69 statutes, species throughout the world were listed.

So that in 1973, Congress was writing against an Endangered Species Act that listed species throughout the world.

The 1973 act, in section 2, the Congress recognizes that the U.S. has pledged itself as a sovereign state in the international community, to conserve various species of wildlife.

Section 4, which deals with the listing of the species, requires that both foreign and domestic species are listed.

Brian B. O’Neill:

And there’s no question about that.

And the Secretary lists foreign species.

Section 7(a)(2), which is at issue, and which was written against the backdrop of the 1969 Endangered Species Act which listed species worldwide, says each Federal agency… it doesn’t say each Federal agency except the State Department… shall consult with the Secretary to ensure that any agency action… and it doesn’t say any agency action in the United States… funded or carried out as not likely to jeopardize the continued existence of any endangered or threatened species.

It doesn’t say any endangered or threatened species in the United States.

But again, that section, in ’73 when it was passed, was passed against a backdrop of listing of all species, both here and abroad.

When the act was amended in 1978, and that’s why I said that there were essentially four versions of the act that we’re talking about, the Secretary’s position was that section 7 applied worldwide.

John Paul Stevens:

May I stop you there, for just a moment?

Brian B. O’Neill:

Yes, sir.

John Paul Stevens:

Is the authority for that the guideline that’s in pages 28 to 30 of the joint appendix, where they talked about the general parameters, that section 7 applies to activities and programs by Federal agencies affecting listed species in foreign countries and high seas?

Brian B. O’Neill:

The guidelines were published before the 1977 and ’78 regulations.

John Paul Stevens:

But is that the language, basically, you’re talking about?

Brian B. O’Neill:

Yes, sir.

John Paul Stevens:

Because… I have this question in reading it.

It’s clear that it applies to endangered species in foreign countries and on the high seas, but it isn’t clear to me that that applies to projects located out of the United States.

Because you could have projects in the southern part of the State… of the United States that affect species in Mexico or Canada or something like that.

But I’m not… it isn’t clear to me that the project had to be located out of the States.

Brian B. O’Neill:

The ’70… the regulations that went into effect in January of 1978 made clear that the protection of the act applied to species outside the United States.

John Paul Stevens:

Right, I can see that.

And do they disagree with that?

If there were a project on the Canadian border that would cause acid rain or something like that and affect species across the border, wouldn’t they agree there would be consultation there?

Brian B. O’Neill:

I believe they would.

John Paul Stevens:

And why do you… what is it that you say, in the prior guidelines, made it clear that the… that the project outside the United States was governed?

Brian B. O’Neill:

The regs… the 1978 regulations did make it clear that they were addressing projects outside the United States.

It did.

Brian B. O’Neill:

And then the conference report, when it changes section 7 in 1978, the conference committee says the conferees felt that the Senate provision, by retaining existing law, was preferable, since regulations governing section 7 are now familiar to most Federal agencies.

So the conferees were aware specifically of the section 7 regulations.

And the section 7 regulations had been published in January of 1978 and had talked about this debate, and said we’re going to apply the regulations worldwide.

So one can presume that the conferees knew of the debate when they restructured section 7, and said we’re not changing the section 7 law.

And when they changed section 7, and they provided for judicial review, from the consultation process… as Justice O’Connor mentioned, they provided for suit in the District of Columbia when you can’t sue in any other circuit.

And section 7 provides for review by the Secretary of State.

Brian B. O’Neill:

It provides for national security review.

The Secretary’s reading reads out half of the endangered species that are listed.

So the Secretary, in making this so-called interpretive regulation, isn’t tinkering with the edges of the statute.

He isn’t interstitially filling in gaps within the statute.

He’s taking the language in section 7, which is broadly based… any and all… and he’s cutting out half of the endangered species.

With regard to the contention that the citizens’ suit provision does not apply, section A of the citizens’ suit provision says any person may commence a civil action on his own behalf to enjoin any person, including the U.S. and agencies alleged to be in violation of any provision of this chapter.

The Secretary is in violation of the duty to consult because he has publicly affirmed the fact that he refuses to consult.

The Secretary is in violation of the duty to publish legal regulations.

And in the court below, we alleged that the Secretary had an affirmative duty to ensure that programs can serve endangered species.

His regulation does not meet the obligations of that affirmative duty.

Byron R. White:

xxx do you think just any person in the… any citizen in the country could bring this suit?

Brian B. O’Neill:

Yes.

Byron R. White:

Everyone’s got standing?

Brian B. O’Neill:

Well, that is not our case.

But the statute creates a heritage–

Byron R. White:

Well, I don’t know why.

If it was so clear, I suppose it would be your case.

You wouldn’t have to be talking around about going to India or someplace.

Brian B. O’Neill:

–Well, we had a member who went to Mahaweli at Sri Lanka, and it was… why push the edges of the standing envelope?

Byron R. White:

Well, you’re now doing it.

Brian B. O’Neill:

I’ll move on.

[Laughter]

Moving right along–

David H. Souter:

Mr. O’Neill, instead of moving on, could you move back just for a second–

Brian B. O’Neill:

–Yes, sir.

David H. Souter:

–to your point about the fact that the Secretary’s reading of 7 renders irrelevant the listing of foreign species?

Isn’t an answer to that that although the Secretary’s reading would, of course, not… of section 7 would, of course, render the listing of foreign species irrelevant to 7, the listing would still be relevant under section 8, with the… which provides the obligation of foreign consultation?

Isn’t that a way of reconciling the listing of foreign species with the Secretary’s reading of 7?

Brian B. O’Neill:

Section 8 provides for assistance programs to foreign nations.

So the listing doesn’t come into play with regard to section 8.

David H. Souter:

Oh, the listing has no reference to 8?

Brian B. O’Neill:

No, but it does to 9.

So your argument works with regard to section 9.

David H. Souter:

I see.

Brian B. O’Neill:

Section 9 provides a series of prohibitions about taking species outside the U.S., about engaging in international trade outside the U.S.–

My answer to the argument, though, is section 9 shows you that when Congress wanted to limit the scope of the statute to the United States or to the high seas, or to the United States, the high seas, and a foreign country, it did so in the structure of section 9.

In section 7, they use all-encompassing language… any agency action, any endangered species.

So the lesson that I draw from section 9 is different than the one that you proposed.

With regard to the Foley, ARAMCO line of cases, it’s our position that they don’t apply.

We’re dealing with our money, in Washington, D.C., right down the street, and our agencies.

And the agencies are born of Congress.

So it really isn’t a question of an extraterritorial application of the statute.

John Paul Stevens:

But isn’t that… overlook the language

“ensure that any action authorized is not likely to. “

doesn’t that impose an obligation on… of some kind of best efforts, at least, to be sure what happens in the foreign country?

Brian B. O’Neill:

If we’re going to spend our money, it does.

John Paul Stevens:

Yeah.

So then doesn’t that… isn’t that a response to your most recent argument?

Brian B. O’Neill:

It is a response, but if you look at the totality of the action decision being made, it is more of a United States action decision than it is a Sri Lankan action decision.

John Paul Stevens:

What if we’re only putting up 10 percent of the money?

Brian B. O’Neill:

The consultation process… and the Congress has found that the interaction that results in the consultation process saves species.

If we’re putting up 10 percent of the money, our interaction with the Sri Lankan Government may very well affect those species.

And there is support in the record for that contention, in a couple of places.

A couple of the deponents, including Dr. Elliott McClure, who was an expert in the area, testified that he had seen the consultation process work.

The AID documents, below in the record, indicate the Mahaweli project could harm endangered species, and that the Sri Lankan Government wants our input to avoid that harm.

So the consultation process, at least with regard to the Mahaweli project, is made for the situation.

The other differences between this case and the Foley, ARAMCO line of cases are that this act explicitly was intended to implement treaties.

If you assume that the Foley, ARAMCO line of cases did come into play to begin with, those cases deal with labor and employment.

And you can say, well, those are labor and employment cases, but labor and employment is historically a local concern.

The environment is not a local concern.

Brian B. O’Neill:

And the Congress recognizes it both in the preamble to this statute, and the preamble to numerous other environmental statutes.

And in this case, unlike the Foley, ARAMCO line of cases, we believe the statute is clear on its face.

The mere fact that the Government makes the argument that it isn’t, doesn’t change the clarity of the statute.

With regard to the general issue of standing, we have a citizens’ suit provision.

So this case is different than the Federation v. Lujan case.

We have a final agency action, which everybody admits that is a final agency action.

So this case, unlike the Federation-Lujan case, is… presents the issue clearly and squarely.

Yes, sir.

Antonin Scalia:

Come back to what I was asking you, your response to the fact that the Secretary’s decision won’t make any difference is, well, of course, once we decide that it’s unlawful, the other agencies will fall in line.

How is that any different from a case in which I try to challenge a law of Indiana as being unconstitutional?

And, in fact, I don’t live in Indiana; I’m not a citizen of Indiana.

This law doesn’t apply to me.

But there is a similar law in New York that is applying to me.

Now, would I have standing to challenge the Indiana law because once the Court says that that law is unconstitutional, of course New York will comply with the Court’s decree.

Would I really have standing in Indiana–

Brian B. O’Neill:

The answer to your question is–

Antonin Scalia:

–simply because the judgment will pronounce a determination of law that will be obeyed by somebody else?

Brian B. O’Neill:

–The answer to your question is no, you would not have standing.

Antonin Scalia:

Well, why is this any different?

Brian B. O’Neill:

Thank you.

For a couple of reasons.

The first is, the Secretary takes the position that the regulation is legally binding, and the Secretary has the support for that position in the statute.

The statute delegates to the Secretary a rule-making authority with regard to the Endangered Species Act both in sections 4 and 7 of the Endangered Species Act.

That’s the first reason.

The second reason is–

Antonin Scalia:

So you’d say that the other agencies are bound to follow the Secretary’s determination?

Brian B. O’Neill:

–That’s correct.

And that’s the Secretary’s position, at least in the preamble to the regulations.

It isn’t today, because it isn’t convenient today.

Antonin Scalia:

Of course, the Secretary could comply, I suppose, by simply withdrawing the regulation and not saying anything.

Brian B. O’Neill:

That is correct.

But the form of the… because the Secretary has abdicated his responsibility for a number of years and has told the world don’t consult, and the consultation process has essentially laid waste for a number of years, it is within the sound discretion of the district court judge to tailor a remedy for that wrong.

And he has done that.

And the nature of the remedy, the district court remedy, which is publish new rules, is not before this Court.

Nobody has argued about it.

In addition, what is… right now, what is the impediment to there being any consultation?

The first roadblock that needs to be removed is the Secretary’s refusal to consult.

If we were to go to an action agency and sue them and say you didn’t consult with regard to the Mahaweli project in Sri Lanka, they would say we can’t consult because the Secretary refuses to consult.

So this is roadblock number one.

And roadblock number one is a final, agency action.

The Secretary has taken the position that it’s a mandatory regulation.

And the Secretary has created an additional harm by going out and distributing the line to the other Federal agencies that consultation isn’t required.

The consultation process has lied fallow.

And species continue to be extinguished, as the result of the U.S. projects overseas.

That’s why I think it’s different than New York and… was it Indiana or Illinois?

Antonin Scalia:

I think you’re right, that those are substantial differences.

Brian B. O’Neill:

I’m going to see if there are any more in my outline.

[Laughter]

If those are the ones I remember, they’ve got to be the best ones.

And Larson v. Valente says we don’t need to cure every single injury.

With regard to the standing fight, in addition to the fact that there’s a citizens’ suit, if you look at it from a common sense perspective, what else would another procedural posture bring to this case and the resolution of this issue?

Nothing.

There’s the regulation and the statute.

And in this case, the regulation is either in violation of the statute, or it isn’t in violation of the statute.

William H. Rehnquist:

Well, you can say that about a lot of cases, Mr. O’Neill, in which we’ve said there was no standing.

It’s a perfectly good record.

A plaintiff with standing might not bring much more to the case, and nonetheless, we’ve fairly rigorously enforced our standing requirement.

Brian B. O’Neill:

And in this case, I believe we meet them, because Ms. Skilbred who went to he site, who intends to go back to the site.

The argument… and I say this facetiously… but the argument that the Government makes about what kind of intention you need to go back to the site, in essence requires us to camp out at the site, in order to have standing.

William H. Rehnquist:

Whereas you say a visit 10 years ago suffices.

Brian B. O’Neill:

Well, it wasn’t a visit 10 years ago when we started the civil action.

The civil action is 5 years old… 5 years.

She uses the resource, professionally, and she intended to go back.

But we have different kinds of use.

Dr. Elliott McClure, for example, studied Asian elephants.

Now, he’s never been to the Mahaweli project, but the Mahaweli project is extinguishing Asian elephants from the face of the earth.

There’s an animal nexus between Dr. McClure and the elephant.

William H. Rehnquist:

You mean the Asian elephants might come over here so he could study them here?

Brian B. O’Neill:

He’s studied them in places other than the Mahaweli area of Sri Lanka.

William H. Rehnquist:

You are pressing the outer envelope of standing.

[Laughter]

Brian B. O’Neill:

Then I’ll go back to Ms. Skilbred, who, by the way is here, and who, in the last 2 days getting ready for this, I’ve deeply fallen in love with because she went to the Mahaweli project.

But they would require us to camp out at the site.

And in all honesty, we don’t believe this Court’s decision require us to camp out at the site.

If anybody has any further questions I’d be happy to answer them.

Otherwise, I’ll sit down early.

William H. Rehnquist:

Thank you, Mr. O’Neill.

Brian B. O’Neill:

Thank you, Judge.

William H. Rehnquist:

Mr. Kneedler, you have 3 minutes remaining.

Edwin S. Kneedler:

Thank you, Mr. Chief Justice.

I have several points.

First on the question of standing, the Secretary of the Interior did not take the position in 1986, just as we do not take the position today, that the interpretive regulation is binding on other agencies.

I refer the Court to page 6 of our brief, in which we say that the preamble to the 1986 regulation stated that the Fish and Wildlife Service performs only, quote,

“an advisory function under section 7. “

close quote, and that the action agency makes the ultimate decision as to whether its proposed actions will comply with the act.

Byron R. White:

Yeah, but that doesn’t… it doesn’t reach the question of whether there’s… they’re bound to consult.

Edwin S. Kneedler:

Well, but the… this is an interpretive regulation.

The Secretary of the Interior, and respondents’ own witnesses in this case, as we showed in our brief, agreed with us.

The Secretary cannot make another agency consult.

Byron R. White:

Your colleague on the other side said that at one time, the Secretary took the position that the agency is bound to consult, if he has a regulation that they have to consult.

Byron R. White:

You haven’t answered that yet.

Edwin S. Kneedler:

No, the best evidence that they did not is the fact that respondents have not pointed to, and we are not aware of a single instance in which an… in which an agency–

Byron R. White:

So you did say that… you did say the Secretary has never taken that position.

Edwin S. Kneedler:

–Has never taken the position–

John Paul Stevens:

Well, that’s with respect to foreign projects.

But there is an obligation to consult with regard to–

Edwin S. Kneedler:

–There’s an obligation to consult.

And again, what–

John Paul Stevens:

–But isn’t that equal… I mean, it just depends on the scope of the obligation.

Why is one any more mandatory than the other?

It’s a question of whether–

Edwin S. Kneedler:

–The statutory duty is mandatory.

The question is whether the Secretary’s interpretation of what the statute means–

John Paul Stevens:

–But if the statute clearly applied to foreign projects, then there would be a mandatory duty to consult.

Edwin S. Kneedler:

–Right, but that’s not… that’s different from saying the Secretary’s interpretive regulation is binding on the agency.

Whatever binds the agency is the statute, itself, not what the Secretary says about it.

John Paul Stevens:

But would the… would this Secretary’s interpretation of the statute be entitled to deference from other agencies?

Edwin S. Kneedler:

Yes, it would be entitled to deference the same way as any others.

But from 1978 to 1986, while the prior regulation was in effect, agencies did not consult with the Fish and Wildlife Service.

John Paul Stevens:

Do you agree with his reading that that regulation clearly applied to foreign projects, as well as species in foreign countries?

Edwin S. Kneedler:

Yes.

You do.

Edwin S. Kneedler:

1978.

With respect to the fact that this Court might affirm the judgment, the standing question, with all respect, has to be looked at at the time the plaintiffs filed the action in district court.

The question is whether a single, district court decision construing the act would be followed by other agencies.

And there’s no indication… no reason to believe that it would be.

On the merits, with respect to the listing requirement, Justice Souter, section 8 does specifically refer to endangered or threatened species with respect to the President’s furnishing of foreign assistance.

So the listing of foreign species is tied in both with respect to section 8 and section 9.

Finally, with respect to the presumption, respondents say it only applies for local activities such as employment.

But we say that there is… in our view, nothing could be more local than the construction of a project on foreign soil by a foreign government in matters that affect that foreign country’s own resources.

Edwin S. Kneedler:

There’s no reason to believe that section 7 applies there.

William H. Rehnquist:

Thank you, Mr. Kneedler.

The case is submitted.