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COMMENTS
Procedural Injury Standing after
Lujan v Defenders of Wildlife
ChristopherT. Burtt
Imagine that a federal agency approves the construction of a dam that will submerge the habitat of an endangered species of beaver. A nearby resident frequently makes camping trips to this threatened area and particularly enjoys observing the beaver in its native environment. Upset that the federal project will ruin his camping opportunities as well as endanger the beaver popula- tion, the camper decides to sue the federal agency to stop the project. The basis for his suit is the failure of the federal agency to prepare an Environmental Impact Statement ("EIS") before approving the project, as required by law.' Before the camper can get into court, however, he must meet the jurisdictional requirements of standing. At a minimum, a litigant must show three things in order to have standing to sue: (1) that he has suffered an "injury in fact"; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that it is likely that a favorable decision will fully redress the injury.^2 In the above example, the camper
t A.B. 1992, The University of Chicago; J.D. Candidate 1995, The University of Chicago. ' The National Environmental Policy Act ("NEPA") requires agencies to "include [an
EIS] in every recommendation or report on... major Federal actions significantly affect- ing the quality of the human environment." (^42) USC § 4332(2)(C) (1988). 2 See, for example, Lujan v Defenders of Wildlife, 112 S Ct 2130, 2136 (1992). These three requirements are derived from Article III of the Constitution, which limits the ju- dicial power to "Cases" and "Controversies." US Const, Art I, § 2. They must be shown "at a minimum" because prudential requirements of standing might also limit plaintiffs.
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cannot satisfy this last criterion, the redressability requirement, because it will be impossible for him to prove that a favorable action by the court (that is, an order directing the agency to prepare an EIS) will prevent the environmental harm that he fears. After all, even if forced to prepare the EIS, the agency might still conclude that the benefits of the dam outweigh its impact on the environment and thus allow the dam construction to proceed. Because he would be unable to show that an EIS would prevent the damage, the camper would not have standing to sue. Enter the (^) concept of procedural injury. A procedural injury occurs when an agency fails to follow a legally required proce- dure, such as the preparation of an EIS, and this failure in- creases the risk of future harm to some party.' For a given plaintiff, the consequences of an agency's failure to follow a procedure are necessarily ambiguous since the agency might have reached the same result even if it had followed the correct proce- dure. Because procedural plaintiffs are never able to show that adherence to procedure will definitely avert subsequent harm, they are always unable to meet the redressability requirement of standing. In Lujan v Defenders of Wildlife, the Supreme Court suggest- ed in a footnote that the "normal standards of redressability" should not apply to procedural injury plaintiffs.^4 The precedential value of the Lujan approach to procedural injuries is questionable. First, the apparent removal of the "normal" redressability requirement contradicts the body of the Lujan opinion, which maintained that redressability is part of the "irreducible constitutional minimum" of standing.' At no point in the opinion did the Court provide a reason for treating procedur- al injuries differently from other injuries. Second, the passage in Lujan concerning procedural injuries is only dicta. The Court denied standing to the plaintiffs in Lujan because it found that they failed the injury-in-fact test as well as the redressability requirement; therefore, a lower redressibility requirement alone would not have benefited them. The footnote concerns only those
See text accompanying notes 19-22. 3 See text accompanying notes 23-25 for a more detailed description of procedural injuries. (^4 112) S Ct 2130, (^2142) n 7 (1992). ' See id at 2136.
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ing jurisprudence as well as the "prudential" (^) standing require- ments, and illustrates the various problems procedural plaintiffs face in meeting these criteria.
A. The Constitutional and Prudential (^) Limitations
Article III of the United States Constitution limits the "Judi- cial Power" of the (^) United States to "Cases" and "Controver- sies." 1 The Supreme Court has interpreted Article III to impose a "standing" requirement that restricts the jurisdiction of federal courts to those cases (^) where, at an "irreducible minimum," it is shown that (1) the plaintiff (^) has suffered an "injury in fact"-that is, an invasion of a legally protected interest that is "concrete (^) and particularized" and "actual or imminent," (^) not "conjectural" or "hypothetical"; (2) the plaintiff's injury is fairly traceable to the challenged action of the defendant and not the result of the inde- pendent action of (^) some third party not before the court; and (3) it is likely, as (^) opposed to merely speculative, that a favorable deci- sion will redress the injury. 2 These three elements are (^) the "con- stitutional" requirements of standing. The rationales offered for the constitutional requirements are varied and sometimes (^) conflicting. 13 One purpose is to ensure a "concrete (^) adverseness[,] (^) which sharpens (^) the presentation (^) of is- sues"; 4 without litigants who care deeply about the case, the courts may reach an improper outcome. A second justification is to prevent litigants who have only a tangential interest in an issue from binding (^) parties with a more direct interest; the "ideal of self-determination" (^) requires a personal stake in the out- come. 5 A third purpose is the prohibition on advisory (^) opinions; judicial rulings that do not impact the parties are "bound to move in an unreal atmosphere." 6 Courts need a concrete controversy before them in (^) order to fully assess the consequences of their decisions for future litigants. Finally, Justice Scalia has (^) consis- tently argued that standing serves a separation-of-powers (^) func- tion.'^7 Injuries that are not personal to the plaintiff (^) are better
" US Const, Art I, § 2. 12 Lujan, 112 S Ct at 2136. 1" See generally William A. (^) Fletcher, The Structure of Standing, 98 Yale L J 221, 222-23 (1988); Comment, No Generalized Grievances: The "Law of Rules" Approach to Standing, 19 Ohio N U L (^) Rev 927, 929-31 (1993). 4 Baker v Carr, 369 US 186, 204 (1962). " See Lea Brilmayer, The JurisprudenceofArticle III: Perspectiveson the "Caseor Con- troversy" " Felix Requirement, Frankfurter, (^93) (^) A Harv Note on L Rev Advisory 297, (^311) Opinions, (1979). 37 Harv L Rev 1002, 1006 (1924). 17 See Antonin Scalia, The Doctrine of Standing as an EssentialElement of the Sepa-
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redressed through the political process; rules of standing keep
such matters out of the courts.^18 These justifications reinforce
the importance of the standing requirements, including
redressability. They furnish reasons to retain the "normal"
redressability requirement for plaintiffs alleging procedural inju-
ries.
In addition to constitutional limitations, the Court has erect-
ed "prudential" barriers to judicial standing. The key prudential
limitation is that "the interest sought to be protected by the com-
plainant is arguably within the zone of interest sought to be
protected or regulated by the statute or constitutional guarantee
in question." 9 A plaintiff meets this "zone of interest" test if it
can "reasonably be assumed that Congress intended to permit the
suit."^0 Because such an intention can be established by a sim-
ple statement on the part of Congress to that effect, the zone-of-
interest test is easily satisfied in practice. In fact, the Court has
only once denied standing on this ground.^2 This Comment,
therefore, will focus on the constitutional requirements, which
after Lujan Congress cannot bypassY
B. The Constitutional Problem Posed by Procedural Injuries
A procedural injury occurs when a federal agency fails to
follow a required procedure and then acts to harm an interest of
the plaintiff. If the agency had followed the procedure, it might
never have taken the subsequent harmful action. For example,
ration of Powers, 17 Suffolk U L Rev 881 (1983); Lujan, 112 S Ct at 2136 (Scalia for the majority) (case or controversy requirement is the "Constitution's central mechanism of separation of powers"); id at 2144-45 (concrete injury requirement is "a principle fun- damental to the separate and distinct constitutional role of the Third Branch"). "8 See Lujan, 112 S Ct at 2145 ("Vindicating (^) the public interest... is the function of Congress and the Chief Executive."); Scalia, 17 Suffolk U L Rev at 884-97. " Assn of Data Processing Service Organizations, Inc. v Camp, 397 US 150, 153 (1970). Some of the other prudential limitations prevent the adjudication of generalized grievances and prohibit litigants from asserting the legal rights of (^) another. See Warth v Seldin, 422 US 490, 499 (1975). These limitations are redundant given the current consti- tutional requirements: the injury-in-fact requirement assures that the plaintiff's injury is concrete (not shared by the general public), see Lujan, 112 S Ct at 2143, and that the plaintiff is "himself among (^) the injured," id at 2137, quoting Sierra Club v Morton, 405 US 727, 735 (1972). ' Clarke v Securities Industry Ass'n, 479 US 388, 399 (1987). See also Fletcher, 98 Yale L J at 252 (cited (^) in note 13) ("[IWf Congress explicitly confers standing on [ I a plain- tiff, then the Court's 'prudential' hesitation is overcome."). 21 See Air Courier Conference of America v American Postal Workers Union, 498 US 517 (1991). n See Lujan, 112 S Ct at 2145-46 (stating that Congress cannot create new injuries in fact unless the injuries are concrete, as required by Article I).
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"imminent" or "concrete"; if so, they cannot establish injury in fact.' For example, the camper's injury is arguably neither im- minent (the dam may not be completed for years) nor concrete (the interest in the government preparing an EIS is simply an in- terest in the execution of the laws and thus shared by the (^) gener- al public). Procedural plaintiffs will necessarily have difficulty showing imminence because the ultimate substantive harm (^) they seek to prevent will occur, if at all, at some time in the future. Procedural plaintiffs have difficulty satisfying the redressability criterion because adherence to procedures redresses the increased risk of future injury, (^) but does not guarantee that future injury will not occur. The relief procedural plaintiffs (^) seek can never redress the substantive injury itself-thus, if the courts look only to the substantive harm, procedural plaintiffs will never be able to meet the redressability requirement. If violations of procedure achieve the status of injuries in fact, plaintiffs will have no problem meeting the redressability and causation (^) requirementsY This is because the failure to fol- low procedures would be considered the (^) "cause" of an increased risk of future substantive injury, which is redressed when agen- cies follow required procedures. The (^) redressability inquiry, then, turns upon the characterization of the injury. If procedural injuries are characterized as increased risks of future substantive harm, the redressability and causation difficulties disappear. The only remaining hurdle to standing is the injury-in-fact require- ment, under which cognizable (^) injuries must be concrete. Lujan raises the question whether procedural injuries can ever be con- crete, or whether they are merely nonconcrete, "generally avail- able grievance[s] about government."" If plaintiffs are ever to
' The injury-in-fact test requires that the injury be both imminent and concrete. See text accompanying note 12. In this context, "concrete" means "not shared by the general public." See Lujan, 112 S (^) Ct at 2143 n 8. ' The redressability (^) and causation requirements are closely related; most procedural injury plaintiffs face both redressibility and causation problems. It may well be, for exam- ple, that an increased risk of substantive injury does not "cause" that injury for standing purposes. The failure to prepare an EIS does not "cause" environmental harm if the agency would have approved dam construction even with an EIS. In most cases, (^) plaintiffs either meet, or fall (^) to meet, both requirements. See Note, Standing to Sue: A Brief Overview of CurrentStandingDoctrine, 71 BU L Rev 667, 674-77 (1991). See also Richard J. (^) Pierce, Jr., Sidney A. Shapiro, and Paul R. Verkuil, Administrative Law and Process § 5.4.6 at (^) 144-50 (Foundation, 2d ed 1992). This Comment focuses on the redressability requirement out of convenience; (^) the analysis under the causation requirement would be much the same. ' See Sunstein, 91 Mich L Rev at 202-05, 207 (cited in note 9). 30 Lujan, 112 S Ct at 2143. The Court held that a statute that gave all citizens the
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have standing to challenge procedural errors, they must find a way to characterize their injuries as concrete.
II. SOLUTIONS TO THE PROCEDURAL INJURY PROBLEM
Courts and commentators have suggested several methods by which procedural plaintiffs might gain standing. Although Lujan represents the Supreme Court's latest word on (^) procedural inju- ries, other possible ways of gaining procedural standing have also emerged.
A. The Approach to Procedural Injuries in Lujan
1. The injury in Lujan: a procedural injury.
Lujan involved, a suit brought by environmental organiza- tions alleging violations (^) of the Endangered Species Act of 1973 ("ESA")."' The purpose of the ESA is to protect endangered spe- cies from any federal action threatening their existence. 2 The plaintiffs challenged a rule promulgated by the Secretary of the Interior that interpreted the ESA to apply only in the United States or on the high seas. 3 Under the rule, the Secretary did not have to consult with federal agencies about the possible im- pacts on endangered (^) species of their actions in other countries.' The net result of the rule was that federal action abroad that threatened an endangered species would go unchallenged and unchecked. The Lujan plaintiffs (^) asserted that the rule was an erroneous interpretation of the geographic scope of the ESA. The injury they claimed was procedural: Interior's rule removed a procedur- al safeguard-consultation-from federal actions abroad that affected endangered species. Without consultation, there was an increased risk that endangered species would perish. As in all procedural injury cases, the redressability requirement stood in the way of standing. The environmental organizations could not show that judicial relief-an order requiring consultation-would
right to enforce procedural obligations was invalid because it attempted to grant standing for injuries that were not concrete. See id at 2142-46. The opinion did not address wheth- er all procedural injuries are impermissibly abstract, but the Court's dicta suggested that at least some procedural injuries are cognizable. See id at 2142-43 n 7. For a more de- tailed discussion, see text accompanying notes 35-45. 3' 16 USC §§ 1531 et seq (1988 & Supp 1992). 32 See Lujan, 112 S Ct at 2135. See id. See 50 CFR § 402.01 (1991).
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too general, the Lujan Court made clear that procedural plain-
tiffs, like all others, must meet the concrete injury requirement,
even if Congress has created a special cause of action based on
procedural violations.
Although the Lujan Court denied standing to the plaintiffs,
dicta relegated to a footnote suggests that, under certain circum-
stances, procedural standing would be possible:
There is 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.^42
This passage suggests that the Court believes that the injury-in-
fact and redressibility requirements should be adjusted for proce-
dural plaintiffs. Under this approach, plaintiffs like the camper
would still have to have a "concrete" interest at stake, such as an
interest in personally observing an animal species,^43 but they
would not have to show that substantive environmental harm
was imminent. The Lujan dicta would also relax the
redressability requirement so that someone in the camper's posi-
tion would not have to show that the preparation of an EIS
would definitely prevent the substantive harm.
The plaintiffs in Lujan did not qualify for the reduced
redressability standard because they were unable to meet the
injury-in-fact requirement: they had no concrete interest at risk.
The plaintiffs' interest in observing the endangered species
abroad was not concrete, or separable from the general public,
because they did not have definite plans to visit the area
again.
The approach suggested in Lujan would most benefit those
plaintiffs who are able to allege that the lack of procedure
threatens their personal interests. For example, the camper who
often observes beavers would qualify for the lower imminence
and redressability requirements because his frequent use of the
threatened area establishes a concrete, nongeneralized interest.
42 112 S Ct at 2142 n 7. ' The Lujan majority recognized that this kind of aesthetic interest satisfies the inju- ry-in-fact requirement. Id at 2137. According to the Court, the plaintiffs in Lujan had no injury in fact because (^) their plans to observe the species were not "imminent." Id at 2138. If they had been, presumably the aesthetic interests would have been concrete enough to establish standing. 4 Id at 2138-40.
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He can adequately allege that the dam would hinder, if not de- stroy, his own aesthetic and recreational interests in camping and observing beavers.4 5 Lujan's procedural injury dicta is not without its problems, however. At best, it is vague and provides little guidance for pro- spective plaintiffs and the lower courts; at worst, it eviscerates the standing requirements of the Constitution. The approach is, in the words of Justice Blackmun, (^) "standardless."^46 After Lujan, the contours of the redressability (^) and injury-in-fact standing requirements in procedural injury cases are unknown. The Court failed to answer whether redressability falls out entirely from the standing inquiry in procedural cases, or whether procedural plaintiffs must show something (^) short of the "normal" standard for redressability.4 7^ Even if the Court can constitutionally loosen the redressability requirement, the question of how to apply the requirement remains. The Court suggested that the "normal" standards of redressability need not be met.^4 " The normal re- quirement is that the plaintiff must show that the relief is likely to redress the injury. Under the Court's suggestion, does "likely" become "possible," (^) or something else? The Court offers no guid- ance on this point. Similarly, the Court did not make it clear whether it intended completely to abandon the imminence dom- ponent of the injury-in-fact (^) requirement.^49 The vagueness of the suggested approach is likely (^) to lead to inconsistencies among the lower courts. Furthermore, the approach suggested in the Lujan dicta is potentially unconstitutional. The dilution of the redressability requirement for procedural plaintiffs apparently envisions modi- fying the "core" elements (^) of standing that the Lujan majority declared were "an essential and unchanging part of the case-or- controversy requirement of Article III," which is itself the "cen-
'" Compare Morton, 405 US at 734-35. There, the Court denied the plaintiffs standing because the plaintiffs did not allege that a proposed skiing development would affect the club or its members, but maintained that the project would adversely change the area's aesthetics and ecology. 46 Lujan, 112 S Ct at 2158 (Blackmun dissenting). " The Court does not provide guidance on this issue; only three Justices joined Scalia's opinion on the question of redressability. Furthermore, Scalia appeared to retreat from the (^) redressability determination later in the opinion, stating that the Court did not rely upon the argument that the injury was not redressable. Id at 2143 n 7. (^48) Id. ' This would (^) be unlikely, given that the Court held that the Defenders of Wildlife had sustained no injury in fact because its members did not have immediate plans to visit the affected areas. See id at 2138.
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their electric rates.' The suit was brought under the same En-
dangered Species Act citizen-suit provision involved in Lujan,
and the court applied the "normal" redressability standard, deny-
ing standing in part because the plaintiffs could not prove
redressability. The court held that because other factors could
have caused the rate increase, a change in the regulation would
not necessarily have reduced their rates.^55 The approach suggest-
ed in Lujan seems to permit a loosening of the redressability
requirement such that the plaintiffs here would have had stand-
ing. It is possible, though not certain, that repealing the regula-
tion would prevent an increase in rates. The court, however, did
not address the Lujan approach.
In Sierra Club v Simkins, the Fourth Circuit purported to
apply the normal redressability requirement but did not rigor-
ously enforce it. 6 Although redressability traditionally requires
that the judicial relief be "likely" to redress the injury, the court
found that imposing civil penalties on a private party who vio-
lated environmental reporting requirements redressed the poten-
tial environmental injury.^57 The court imposed the penalties,
even though this remedy did not make it "likely" that environ-
mental damage would not occur.^5 " The fined party could always
choose to treat the penalty as a cost of polluting, in which case it
would inflict environmental harm anyway. The court maintained
that it was applying the constitutional requirements, but it actu-
ally loosened them in a way that is consistent with the dicta in
Lujan. The difference is that the court in Simkins did not explic-
itly modify the requirements. The problem with the Simkins
approach is that it will lead to unpredictable and perhaps im-
proper decisions on when to implicitly depart from the
redressability requirement.
Requiring procedural injury plaintiffs to meet the unmodified
standing requirements is problematic for two reasons. First, it
ignores the Lujan Court's dicta that some procedural injury
822 F Supp 1479, 1500-01 (D Or 1993). Id 847 at F2d 1502-03. 1109 (4th Cir 1988).
7 Id at 1113. ' (^) Id. One of the earliest cases to apply the redressability requirement, Linda R.S. v Richard D., 410 US 614 (1973), seems to require a finding of no redressability (^) in Simkins. In Linda R.S., the Court held that prosecuting a father in criminal court for failure to pro- vide child support did not make it likely that the plaintiff (the mother) would receive the child support. Id at 618. The imposition of civil penalties on a (^) private party, as in Simkins, will have similarly ambiguous consequences, and therefore should not meet the redressability requirement.
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plaintiffs-those with a "separate concrete interest" at stake-should have standing.5 9^ Second, strict adherence to the redressability requirement is contrary to sound policy, and effec- tively defeats Congress's intention to allow litigants to pose legal challenges to the processes causing the damage. 0 Requiring a rigid concept of redressability would^ render^ all^ procedural^ inju- ries noncognizable because plaintiffs cannot prove that following a procedure will remedy an underlying substantive injury. How- ever, procedural injury suits provide a much-needed incentive for agencies to follow mandated procedures; if plaintiffs are denied standing to force agencies to adhere to procedures, the proce- dures are meaningless. Requiring redressability would have particularly far-reaching consequences in the administrative law context, where parties frequently challenge^ agency^ actions^ on^ procedural^ grounds.^ In administrative cases, the Court has^ already^ granted^ parties standing for challenges based on the now well-established "pro- cedural" rights to notice, hearing, and adequate consideration of alternatives. For example, in United States v FloridaEast Coast Railway Co., the Court^ allowed^ a^ regulated^ railroad^ to^ challenge the procedure by which its rates were determined.^6 " The railway claimed that the rates should have been issued after formal rath- er than informal rule making.^62 If the Court had enforced the redressability requirement, the railway would not have had standing because the shift to formal procedures did not make it likely that the substantive rate regulation would change. In Mo- tor Vehicles ManufacturersAss'n v State Farm Mutual Automo- bile Insurance Co., the Court allowed a challenge to an agency's failure to consider alternative courses of action before making a final decision." Here, too, strict enforcement of redressability would have precluded standing because ordering mere consider- ation of alternatives would not have mandated a different sub- stantive result nor made it probable that one would occur. These cases are but two of the many in the area of administrative law granting standing without discussing redressability, which sug- gests that redressability was understood to have been satisfied in those cases.' These decisions assume that procedural harms, or
59 Lujan, 112 S Ct at 2142-43 n 7. 61 See 410 textUS 224 accompanying (1973).^ notes^ 19-20. 62Id at 238-39. ' 463 US 29 (1983). ' See, for example, United^ States^ v^ Nova^ Scotia^ Food^ Products^ Corp.,^^568 F2d^ 240,
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which creates standing,' 69 it emphasized that "the concrete in- jury requirement must remain."^7 " Unlike the Eighth Circuit and Blackmun, the Lujan majority refused to allow Congress to cir- cumvent Article III merely by creating a cause of action for (^) liti- gants who have not suffered a concrete injury.^7 ' Simply put, (^) the Lujan Court found that it would be unconstitutional for Congress to eliminate the requirement of a concrete injury.7 2
3. Informational injury as injury in fact. The doctrine of "informational injury" (^) has frequently been proffered as a solution to the procedural injury (^) problem.^73 An in- formational injury occurs when a procedural (^) failure deprives an interested party of information it needs to comment on a regu- lation or policy. The theory is that the deprivation of information injures "an organization's ability to disseminate information," and that this injury is judicially cognizable when the "informa- tion is essential to the injured organization's activities .... " For example, when the government (^) fails to prepare an EIS and make it publicly available, this deprives interested parties of information they could use to comment on the underlying project. Without the information, certain environmentally (^) dangerous projects might proceed (^) without opposition. By (^) characterizing the denial of information as a substantive harm, the doctrine of informational injury bypasses the redressability problem of procedural standing. (^) A court order requiring an agency to provide information does redress the organization's inability to inform (^) its members. However, the theory's applicability is limited. (^) First, it applies only to those procedural injuries where (^) the unexecuted procedure would have
' Id at 2145, quoting Warth v Seldin, 422 US 490, 500 (1975), quoting Linda R.S. v Richard 70 112 D., S (^410) Ct (^) USat 2146. 614, 617 n 3 (1973). 71 Id at 2145. See also Gladstone Realtors (^) v Village of Bellwood, 441 US 91, 100 (1979), quoting Warth, 422 US at 501 ("In no event, however, may Congress abrogate the Art[icle] II minima: A plaintiff must always have suffered 'a distinct and palpable injury to himself,' that is likely to be redressed if the requested relief is granted."). 7 112 S Ct at 2146. 7' See, for example, Note, InformationalStanding under NEPA: Justiciabilityand the Environmental Decisionmaking Process, 93 Colum L Rev 996 (1993) (arguing that the courts should recognize informational standing in the NEPA (^) context). See also Lujan v National Wildlife Foundation, 497 US 871, 898-99 (1990) (addressing the informational standing argument of the plaintiffs but not deciding the viability of the doctrine). "' Competitive EnterpriseInstitute v NationalHighway Traffic Safety Administration, 901 F2d 107, 122 (DC Cir 1990).
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provided at least some information.' Most significantly, the doc-
trine is limited to organizational plaintiffs; the camper will not
be able to use the doctrine unless he belongs to an environmental
organization willing to sue on his behalf.
In National Organizationfor the Reform of MarijuanaLaws
v United States Department of State, the court applied the infor-
mational injury theory.^76 The District Court for the District of
Columbia held that the plaintiff ("NORML") had an organization-
al interest in using an EIS to inform its members about the fed-
eral government's marijuana policy.^77 NORML contended that it
needed the EIS to assess the environmental effects of spraying
marijuana with herbicides under a federally supported program
run by the Mexican government.^78 The organization further al-
leged that the government's failure to prepare the EIS had pro-
duced an informational injury.^79
Part of NORML's purpose is to disseminate information to
its members about the nation's marijuana policy so that members
can use this information to lobby Congress to change the policy.
The government's failure to prepare an EIS thus directly hin-
dered NORML's ability to perform its mission, and the court
accepted the argument that this failure caused the organization
an injury in fact, whether or not an EIS would have changed the
spraying policy."
"' There are a fair number of such cases, however. For example, whenever an agency action threatens the environment, plaintiffs suffer (^) an informational injury unless the agency prepares an EIS. ' 452 F Supp 1226, 1230 (DDC 1978). For more recent cases granting standing on this theory, see National Wildlife Federationv Hodel, 839 F2d 694, 712 (DC Cir 1988) (concluding that "the elimination of the opportunity to see and use an EIS prepared under federal law (^) does constitute a constitutionally sufficient injury on which to ground stand- ing"); Public Citizen v Office of the United States Trade Representative, 822 F Supp 21, 27- 29 (D DC 1993), rev'd on other grounds, 5 F3d 549 (DC Cir 1993) (granting standing to challenge government's failure to prepare EIS on the North American Free Trade Agree- ment based on (^) plaintiff's organizational interest in keeping its members informed). Note that informational injury is not limited to EIS cases. For example, Action Alliance of Senior Citizens of Greater Philadelphia v Heckler, 789 F2d 931, 939 (DC Cir 1986), granted plaintiffs standing to challenge agency regulations that eliminated the require- ment that federal funding recipients disclose the age distinctions they utilize. ' Section (^) 102(2)(C) of NEPA provides, "all agencies of the Federal Government shall... include in every recommendation or report on proposals for legislation and other major federal actions significantly affecting (^) the quality of the human environment, a detailed statement...." 42 USC § 4332(2)(C). 7" 452 F Supp at 1228. NORML also alleged recreational and health injuries, but the court specifically recognized that informational injury was sufficient to establish standing. See id at 1230. Id at 1233.
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Furthermore, if informational (^) standing allows organizations to gain standing without a concrete interest, it appears to violate the (^) concrete injury requirement of Article III. Interests in receiv- ing information are noncognizable general grievances that any- one can allege, unless (^) an organization member has a concrete interest at stake." (^) According to the Lujan Court, such ideologi- cal concerns are better resolved through the legislative (^) pro- cess." When, however, a member has a concrete interest, (^) which the provision of (^) information will help protect, the organization will be able to challenge agency actions on an information theory.^89
IV. AN ALTERNATE APPROACH (^) TO PROCEDURAL INJURY CLAIMS
If procedural injury plaintiffs must meet (^) the "normal" stand- ing requirements, they will never be permitted (^) to voice their claims in court. As discussed above, courts have approached this problem (^) in several ways. Of those, recharacterizing the proce- dural (^) injuries as informational injuries appears the most promis- ing because it solves the (^) redressability and causation problems not by waiving or modifying the "normal" (^) standing requirements, but by viewing procedural plaintiffs' injuries as present injuries that are redressable through (^) adherence to mandated procedures. However, a significant drawback of the informational injury approach is that it does (^) not eliminate the problem of proving a concrete injury. Characterizing a deprivation (^) of information as the "cause" of the injury, and the provision (^) of the information as "redressing" (^) the injury, (^) does not distinguish (^) the plaintiff's injury
from (^) an injury to the general public. So, recharacterization only addresses the redressability (^) and causation problems. An im-
' One response to this criticism of (^) informational injury is that if informational inju- ries are not concrete, then Freedom of Information Act (^) ("FO") requests are not judicially enforceable. See Richard J. Pierce, (^) Jr., Lujan v. Defenders of Wildlife: Standing as a Judi- cially Imposed Limit on Legislative Power, 42 Duke L J 1170, (^1189) (1993). However, the Freedom of Information Act response is inapposite. (^) The reason informational injuries in the FOIA context are concrete is that Congress limited standing (^) to those who requested information and were denied. 5 USC (^) § 552(a)(4)(B) (1988). In contrast, the citizen-suit provision in Lujan granted standing to "any (^) person," without qualification. 16 USC § 1540(g). Standing in FOIA cases is consistent with Justice Kennedy's concurrence (^) in Lujan, which argued that Congress can (^) meet the concrete injury requirement as long as it "identiffies] (^) the injury it seeks to vindicate and relate[s] the injury to the class of persons entitled to bring suit." 112 S Ct at 2147 (Kennedy concurring). Id at 2145. Under Lujan, a plaintiff can demonstrate a concrete injury only by showing active use of (^) an area or an imminent plan to visit the area. See 112 S Ct at 2138-40.
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proved solution would recognize Lujan's emphasis on the impor- tance of the constitutional requirements, but also require pro- cedural injury plaintiffs to show that the underlying substantive injury affects their own concrete interests.
A. Congressional Elimination of the Redressability (^) Requirement
One solution to the procedural injury dilemma is for Con- gress to (^) enact legislation that establishes causation and redressability automatically for procedural plaintiffs, thereby removing the need for courts to address these issues. °^ Although Congress cannot eliminate the injury-in-fact requirement, under this theory it can eliminate, or at least overcome, the (^) other two prongs of the constitutional standing requirements. Congress could create a citizen-suit provision mandating that an agency's failure to follow procedures "causes" an injury to those with an underlying substantive interest, and that adherence to proce- dures is sufficient to "redress" a procedural plaintiff's injuries. This view is arguably consistent with the Lujan dicta, (^) which appeared to waive the causation and redressability requirements for plaintiffs who "[have] been accorded a procedural right ..... 9 1^ This suggests that when Congress creates citizen suits, it confers procedural rights that bypass the strict redressability requirement. One of the problems with this approach (^) is that it applies only to a subset of injuries-those cases where Congress has en- acted a citizen-suit provision, or where the legislative history contains findings of causation or redressability 2 A (^) second prob- lem is that congressional modification of the constitutional (^) stand- ing requirements plunges headlong into separation-of-powers problems. If the requirements are truly "essential" under Article III-as Lujan indicates they are-then Congress and the courts cannot modify them. The courts, and not Congress, should an- nounce and apply the standing requirements because they have the final word on constitutional interpretation."
' See Sunstein, 91 Mich L Rev at 229-30 (cited in note 9); see generally Comment, Standing on Firmer Ground: Separation of Powers and Deference to Congressional Find- ings in the StandingAnalysis, (^) 59 U Chi L Rev 1645 (1992). 91 Lujan, 112 S Ct at 2142 n 7. See Comment, 59 U Chi L Rev at 1663 (arguing that Congress is better equipped than the courts to make the causation and redressability determinations). ' Marbury v Madison, 5 US (1 Cranch) 137 (1803).
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