The cornerstone of the explosion of environmental litigation in the last 40 years was an expansive view of the concept of "standing"—that is, who can gain access to the courts to challenge government action. In recent years, the pendulum has been swinging back, with enormous implications. This article reviews what may be the important recent embodiment of this trend: new standing rules adopted by the United States Court of Appeals for the District of Columbia Circuit.

Key Role of the DC Circuit

Despite the geographically small area under its jurisdiction, the DC Circuit is widely considered to be the second most powerful court in the land. In large part, this is due to the fact that several statutes designate the DC Circuit as either the exclusive forum or an alternate forum for challenging agency orders and rules. The DC Circuit, for example, has direct review of environmental regulations promulgated under the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 6976(a)(1) (2006)), the Oil Pollution Act (33 U.S.C. § 2717(a) (2006)), and the Resource Conservation and Recovery Act (42 U.S.C. § 7006(a)(1) (2006)), national primary drinking water standards under the Safe Drinking Water Act (42 U.S.C. § 300j-7(a)(1) (2006)) and regulations with nationwide scope under the Clean Air Act (42 U.S.C. § 7607(b)(1) (2006). In fact, it has been estimated that over half of all challenges to regulations promulgated by the Environmental Protection Agency are brought in the DC Circuit.

Trade associations, labor unions and similar organizations often lead the charge against an agency rule on behalf of their members. As a result, they often find themselves before a distinguished panel of DC Circuit judges.

Perhaps it is because these judges deal with so many direct challenges to agency action that they are so keenly sensitive to the issue of standing. This past summer, the DC Circuit became the only circuit court in the country to codify specific standing-related requirements in its procedural rules.

New DC Circuit Rules

The court's new rules codify the pleading requirements set forth in Sierra Club v. EPA, 292 F.3d 895, 900-01 (DC Cir. 2002). They require that those challenging agency action prove their standing up front, if it is not self-evident. This is to be done in a two-step process.

First, under Circuit Rule 15 as amended, petitioners challenging agency action must provide, as part of the docketing statement, a "brief statement" supporting their claim of standing (Circuit Rule 15(c)(2)). At this point, a petitioner "may" support the statement with references to evidence and the administrative record. Failure to provide the required statement is not fatal, however. The rule provides that an incomplete docketing statement will still be lodged, but with directions to supply a conforming one.

Second, Circuit Rule 28 as amended now requires a petitioner to set forth its basis for standing in a separate section of the brief on the merits (Circuit Rule 28(a)(7)). This new section must immediately precede the argument section. If standing is "not apparent" from the administrative record, this section must provide both arguments and evidence that "establish" a petitioner's claim of standing. Lengthy evidence that is not part of the administrative record may be attached as a separate addendum, and does not count toward the page limitations for the brief (Circuit Rule 32(a)(2)).

On their face, the new rules raise a host of questions: When is a petitioner's standing "not apparent"? What "evidence" is required? What is the standard required to "establish" standing? What are the repercussions for not following the new rules? Answers to these questions, or at least a better understanding of what is required under the new rules, can be gleaned from court's decisions in Sierra Club v. EPA and its progeny.

In Sierra Club, in what could be described as a routine challenge to agency rulemaking, the petitioners challenged the legality of a rule establishing conditions for defining certain wastewater treatment sludges as hazardous under the Resource Conservation and Recovery Act (Sierra Club, 292 F.3d at 896). As is often the case, the standing issue turned on whether the Sierra Club could establish the individual standing of a member. The required elements to do so are injury-in-fact, causation, and redressability. As the court explained, to show injury-in-fact, an association must "show a substantial probability that it has been injured, that the defendant caused its injury, and that the court could redress that injury." (Id. at 899).

Despite receiving an opportunity for supplemental briefing, Sierra Club relied entirely on its counsel's description of members' alleged injuries, but such allegations, the court noted, were beyond the scope of counsel's personal knowledge. They were thus "not evidence." (Id. at 901.) As a result, the court dismissed the case: "[H]enceforth, a petitioner whose standing is not self-evident should establish its standing by the submission of arguments and any affidavits or other evidence appurtenant thereto at the first appropriate point in the review proceeding." (Id. at 900.) To carry its burden, the court ruled that a petitioner could cite relevant record evidence, if enough, or could file affidavits or other evidence supporting its claim. (Id. at 901.)

What Is Self-Evident?

On the issue of when is a petitioner's standing "not self-evident" -- or, as adopted in the rules, "not apparent" — Sierra Club is less helpful. The court simply noted in Sierra Club that in most cases a petitioner's standing will be clear because the complainant is likely an object of the action at issue in a rulemaking, but did not go much further. (Id. at 900-901.)

More light was shed on the meaning of "self-evident" in American Library Association v. Federal Communications Commission, 401 F.3d 489 (DC Cir. 2005). In that case, the petitioner-association challenged a rule by the FCC that limited redistribution of digital television broadcasts. (Id. at 490.) Based on comments the association submitted to the FCC criticizing the rule, it thought that its standing was "self-evident." (Id. at 491.) The court, disagreed. It did not think that the information "fully illuminated the issue," (Id. at 491.) and set forth what could be viewed as a "reasonable judge" standard: "whether standing is self-evident must be judged from the perspective of the court, not the petitioner." (Id. at 495.)

The court declined to entertain dismissing the case, however, and allowed for supplemental briefing. Factors the court cited were (1) that the association did represent a large number of libraries and consumers who would be "indisputably... directly affected" by the rule and that there was "good reason to assume that at least one of their members would suffer an Article III injury"; (2) that there was nothing in the record to suggest that standing would be challenged; and (3) that the administrative record provided examples of how the association would be affected by the rule.

American Library Association was decided before the court's new standing rules were adopted, however. After that adoption, petitioners may not be so lucky. At least one case has held out the possibility of sanctions and even dismissal pursuant to Circuit Rule 38 would be justified for failure to comply with the Court's new rules (Int'l Bhd. of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130, 1134 (DC Cir. 2005)).

Association counsel should take special notice of these procedural rule changes, and be sure compliance is demonstrated in all pleadings.