April 21, 1992
_________________________
No. 91-1895
UNITED STATES OF AMERICA, ET AL.,
Plaintiffs, Appellees,
v.
AVX CORPORATION, ET AL.,
Defendants, Appellees.
_______________
NATIONAL WILDLIFE FEDERATION,
Intervenor, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
Eric R. Glitzenstein, with whom Katherine A. Meyer and
______________________ ___________________
Harmon, Curran, Gallagher & Spielberg were on brief, for
__________________________________________
appellant.
John A. Bryson, Attorney, U.S. Dept. of Justice, with whom
______________
Barry M. Hartman, Acting Assistant Attorney General, Myles E.
_________________ ________
Flint, Deputy Assistant Attorney General, Ellen M. Mahan and Anne
_____ ______________ ____
S. Almy, Attorneys, U.S. Dept. of Justice, were on brief, for
_______
appellee United States of America.
Matthew T. Brock, Assistant Attorney General
______________________
(Massachusetts), on brief for appellee Commonwealth of
Massachusetts.
Paul B. Galvani, with whom Roscoe Trimmier, Jr. and Ropes &
________________ ____________________ _______
Gray were on brief, for appellee Aerovox, Inc.
____
David A. McLaughlin and McLaughlin & Folan, P.C. on brief
____________________ _________________________
for appellee Belleville Industries, Inc.
_________________________
_________________________
SELYA, Circuit Judge. The National Wildlife Federation
SELYA, Circuit Judge.
_____________
(NWF), an intervenor below, tries to appeal the entry of a
consent decree concerning the cleanup of New Bedford Harbor. NWF
bills the appeal as one involving critical interpretive questions
anent the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. 9601-9675 (1988). There is,
however, a prevenient issue; the original parties to the
litigation contend that NWF lacks standing to maintain the
appeal. Because NWF cannot push past this threshold, we dismiss
for lack of appellate jurisdiction (without considering the
substantive questions that lie beyond the doorstep).
I. BACKGROUND
I. BACKGROUND
The litigation that undergirds this appeal is nearly a
decade old. In 1983, two governmental plaintiffs, the United
States and the Commonwealth of Massachusetts, acting as natural
resources trustees, brought suit for damages under CERCLA 107,
42 U.S.C. 9607, in the United States District Court for the
District of Massachusetts. The complaint alleged that Aerovox,
Inc., Belleville Industries, Inc., and four other defendants bore
responsibility for the release of polychlorinated biphenyls into
the Acushnet River and New Bedford Harbor, causing injury to
natural resources. An amended complaint, filed in March 1984,
added claims for recovery of costs to be incurred in remediating
the river and harbor.
2
The subsequent course of the litigation has been much
chronicled.1 We need not retrace the district court's steps.
For the purpose at hand, it suffices to say that, in 1987, NWF
moved to intervene as a party plaintiff, premising its motion on
the divergence between its views and the views of the plaintiffs
as to the appropriate measure of damages for environmental harm.
NWF professed concern that, due to this divergence in views, the
plaintiffs might settle the pending action too cheaply. On April
27, 1989, the district court granted permissive intervention for
the limited purpose of allowing NWF to brief and argue the
following issues: (1) the legal requirements applicable to any
proposed consent decree; (2) the appropriate measure of natural
resource damages under CERCLA; and (3) the legal requirements for
cleanup under CERCLA. In Re Acushnet River & New Bedford Harbor:
__________________________________________
Proceedings Re Alleged PCB Pollution, 712 F. Supp. 1019, 1023 (D.
____________________________________
Mass. 1989). The order permitting intervention also granted NWF
the right to appeal "from a judgment it views as adverse" in
respect to these issues. Id.
___
On December 18, 1990, the plaintiffs proposed a consent
decree memorializing the anticipated settlement of their claims
____________________
1The district court has written no less than eight published
opinions on various aspects of the litigation. See In re
___ ______
Acushnet River & New Bedford Harbor: Proceedings Re Alleged PCB
_________________________________________________________________
Pollution, 725 F. Supp. 1264 (D. Mass. 1989); S.C., 722 F. Supp.
_________ ____
893 (D. Mass 1989); S.C., 722 F. Supp. 888 (D. Mass. 1989); S.C.,
____ ____
716 F. Supp. 676 (D. Mass. 1989); S.C., 712 F. Supp. 1019 (D.
____
Mass. 1989); S.C., 712 F. Supp. 1010 (D. Mass. 1989); S.C. 712 F.
____ ____
Supp. 994 (D. Mass. 1989); S.C., 675 F. Supp. 22 (D. Mass. 1987).
____
We refer the reader who hungers for more intimate details about
the underlying litigation to those rescripts.
3
against Aerovox and Belleville. The decree provided that the
settling defendants would pay $9,450,000 in response costs and
$3,150,000 as compensation for injuries to natural resources in
the harbor area. In exchange for this $12,600,000 cash
settlement, the plaintiffs would covenant "not to sue or to take
any other civil or administrative action" against Aerovox or
Belleville.
On January 7, 1991, the federal government solicited
public comment on the proposed decree, 56 Fed. Reg. 535 (1991),
as required by CERCLA 122(d)(2), 42 U.S.C. 9622(d)(2), and 28
C.F.R. 50.7 (1990). NWF submitted comments contending that the
suggested cash-out settlement would violate CERCLA in two
respects. First, NWF argued that "the proposed decree
contravened [CERCLA 122(f)] because EPA has not approved a
final response action at the site."2 Second, NWF argued that
____________________
2The statute provides that the federal government may grant
covenants not to sue to CERCLA defendants
. . . if each of the following conditions is met:
(A) The covenant not to sue is in the
public interest.
(B) The covenant not to sue would
expedite response action consistent with the
National Contingency Plan . . . .
(C) The [covenantee] is in full
compliance with a consent decree under
[CERCLA] section 9606 . . . (including a
consent decree entered into in accordance
with this section) for response to the
release or threatened release concerned.
(D) The response action has been
approved by the [Administrator of the EPA, as
the President's designee].
42 U.S.C. 9622(f)(1).
4
the proposed decree ran afoul of CERCLA 122(j) because it
contemplated that the defendants would obtain covenants not to
sue without any assurance that they would "take appropriate
actions necessary to protect and restore the natural resources
damaged by such release . . . of hazardous substances." 42
U.S.C. 9622(j)(2). Unimpressed by NWF's comments, the
plaintiffs pressed the district court to approve the consent
decree. On July 16, 1991, the district court, ore tenus,
___ _____
overruled NWF's objections and entered the decree. This appeal
followed.
Because the dispositive issue in this proceeding
implicates NWF's standing to pursue its appeal, we turn
immediately in that direction. NWF, an intervenor, is the lone
appellant. The plaintiffs (the federal and state governments)
and the settling defendants (Aerovox and Belleville) all appear
as appellees, the district court having entered final judgment,
Fed. R. Civ. P. 54(b), as to all claims against Aerovox and
Belleville. The suit remains pending in the court below against
other defendants.
II. THE NECESSITY FOR STANDING
II. THE NECESSITY FOR STANDING
Our odyssey through the often Byzantine world of
standing is greatly assisted in this instance by the Supreme
Court's opinion in Diamond v. Charles, 476 U.S. 54 (1986).
_______ _______
There, Dr. Diamond, a pediatrician, intervened as a defendant in
a class action brought by a group of gynecologists seeking to
invalidate an Illinois abortion law. Later, disappointed by an
5
opinion of the Seventh Circuit, Dr. Diamond took an appeal to the
Supreme Court in which he sought to challenge an injunction
barring enforcement of certain
sections of the statute. Id. at 61. He prosecuted the appeal
___
notwithstanding that the state (on whose side he had originally
intervened) chose not to pursue a further appeal. Id. at 56, 61.
___
The Court ruled that, since the intervenor was the sole
appellant, he could no longer ride the state's coattails, but
must himself bear the burden of showing that he met the
requirements for standing.3 Id. at 63-64. In language of
___
unmistakable clarity, Justice Blackmun wrote that "an
intervenor's right to continue a suit in the absence of the party
on whose side intervention was permitted is contingent upon a
showing by the intervenor that he fulfills the requirements of
Art. III." Id. at 68. Accord Boston Tow Boat Co. v. United
___ ______ _____________________ ______
States, 321 U.S. 632, 633-34 (1944). Because he had not made the
______
requisite showing, Dr. Diamond's appeal was dismissed for want of
appellate jurisdiction. See Diamond, 476 U.S. at 71.
___ _______
NWF suggests that Diamond is not controlling because
_______
the original parties here the federal and state sovereigns, on
the one hand, and the settling defendants, on the other hand
remain parties to the appeal. This suggestion is a prime example
of a litigant allowing hope to triumph over reason. In Diamond,
_______
the intervenor also argued that the party on whose side he
____________________
3The Court expressly left open the question of whether a
party seeking to intervene in the district court must satisfy
Article III's standing requirements. Diamond, 476 U.S. at 68-69.
_______
6
intervened the state remained a party to the litigation, thus
keeping the original controversy alive and allowing him to derive
the benefit of the state's standing. Id. at 63-64. The Court
___
squarely rejected the argument, noting that while the state's
interests may theoretically have remained adverse to those of the
other appellees, the state's failure to appeal the issue removed
the underlying controversy upon which the intervenor had
"piggyback[ed]" in the lower courts. Id.
___
So here. In the district court, the plaintiffs were
seeking to maximize cleanup efforts; the defendants were hoping
to minimize their financial liability. This provided the
"adversariness" that rendered the question of NWF's standing
academic. See id. at 68-69. The entry of the consent decree,
___ ___
with the full support of all the settling parties, changed the
calculus. While the parties to the decree are still parties to
the action and to the appeal, they are now opponents in name
only; in practical effect, the plaintiffs and the settling
defendants no longer represent opposing interests. The
underlying controversy between them has been resolved. Hence,
given the case's current posture, there is no longer any
extraneous support to which NWF may cling.
In point of fact, this case presents a stronger
argument against continued piggybacking than the Diamond case.
_______
In Diamond, the state, while not itself appealing, had filed a
_______
letter of interest making clear that it favored the position that
the appellant was endeavoring to advance. Id. at 61. Here,
___
7
however, there is no such enduring confluence of interests. The
parties on whose side NWF originally intervened the federal and
state sovereigns want to preserve the very decree that NWF
wants to defenestrate. They are adamantly opposed to the
position that the intervenor seeks to espouse on appeal.
Therefore, NWF finds itself in an even weaker position than that
occupied by Dr. Diamond: in Thomas Wolfe's phrase, "a stranger
and alone."4
Nor does the clause in the intervention order
purporting to grant NWF the right to appeal have any significance
on the threshold issue with which we must grapple. Standing is a
constitutional precondition to the jurisdiction of a federal
court and may not be conferred by judicial fiat upon a party who
does not meet the requirements of Article III. See Diamond, 476
___ _______
U.S. at 68 (while intervenors are entitled to seek review, their
ability to maintain an appeal in the absence of the party on
whose side they originally intervened is contingent upon meeting
the requirements of Article III). Thus, an intervenor who does
not actually meet the constitutional requirements for standing to
appeal cannot premise standing solely upon a court order
purporting to grant a right of appeal. See United States v.
___ ______________
Western Elec. Co., 900 F.2d 283, 309-10 (D.C. Cir.) (per curiam),
_________________
cert. denied, 111 S. Ct. 283 (1990).
_____ ______
We have said enough. This case is a Diamond in the
_______
rough. Consonant with the Court's teachings, we rule that an
____________________
4Thomas Wolfe, Look Homeward, Angel, foreword (1929).
____________________
8
association which has intervened in the trial court and which
seeks to prosecute an appeal notwithstanding that the parties on
whose side it intervened have eschewed further appeals, must
independently pass the test of Article III standing. Applying
this precept, NWF can no longer piggyback on the plaintiffs'
interests in this litigation, but must satisfy the requirements
for standing if it is to maintain the instant appeal.
III. THE REQUIREMENTS FOR STANDING
III. THE REQUIREMENTS FOR STANDING
Standing poses the potential for a domino effect. If a
party lacks standing to bring a matter before the court, the
court lacks jurisdiction to decide the merits of the underlying
case. See FW/PBS v. City of Dallas, 493 U.S. 215, 231 (1990);
___ ______ _______________
Bender v. Williamsport Area School Dist., 475 U.S. 534, 541
______ ________________________________
(1986); Valley Forge Christian College v. Americans United for
________________________________ _____________________
Separation of Church & State, 454 U.S. 464, 475-76 (1982). Ergo,
____________________________
standing is a "threshold question in every federal case,
determining the power of the court to entertain the suit." Warth
_____
v. Seldin, 422 U.S. 490, 498 (1975). The inquiry into standing
______
seeks to determine "whether the litigant is entitled to have the
court decide the merits of the dispute or of particular issues."
Id.; accord Conservation Law Found. of N.E. v. Reilly, 950 F.2d
___ ______ _______________________________ ______
38, 40 (1st Cir. 1991) (CLF/NE). The ingredients of standing are
______
imprecise and not easily susceptible to concrete definitions or
mechanical application. See Allen v. Wright, 468 U.S. 737, 751
___ _____ ______
(1984); Valley Forge, 454 U.S. at 475.
____________
The constitutional limitations on standing derive from
9
the requirement that federal courts can act only upon a
justiciable case or controversy. U.S. Const. art. III. To
satisfy the constitutional imperative, "[a] plaintiff must allege
personal injury fairly traceable to the defendant's allegedly
unlawful conduct and likely to be redressed by the requested
relief." Allen, 468 U.S. at 751. Because the constitutional
_____
imperative seeks to ensure the existence of a case or controversy
by focusing on the harm to the complainant, it is unsurprising
that the "personal injury" prong of the standing inquiry has
received the bulk of the Court's attention. While the requisite
injury may be common to many, see United States v. Students
___ _____________ ________
Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669,
_________________________________________________
687-88 (1973), it may not be shared by all. See Warth, 422 U.S.
___ _____
at 499; Schlesinger v. Reservists Comm. to Stop the War, 418 U.S.
___________ ________________________________
208, 220 (1974). The injury must be real, see Warth, 422 U.S. at
___ _____
501 (requiring injury to be "distinct and palpable"), but not
necessarily economic; environmental or aesthetic injury can
suffice in certain circumstances. See, e.g., SCRAP, 412 U.S. at
___ ____ _____
686; Sierra Club v. Morton, 405 U.S. 727, 734 (1972). A mere
___________ ______
interest in an event no matter how passionate or sincere the
interest and no matter how charged with public import the event
will not substitute for an actual injury. See Diamond, 476 U.S.
___ _______
at 62 ("The presence of a disagreement, however sharp and
acrimonious it may be, is insufficient by itself to meet Art.
III's requirements."); SCRAP, 412 U.S. at 687 (insisting upon a
_____
showing of personal injury "prevents the judicial process from
10
becoming no more than a vehicle for the vindication of the value
interests of concerned bystanders").
In addition to its constitutional dimensions, the
doctrine of standing also embraces prudential concerns regarding
the proper exercise of federal jurisdiction. To this end, the
Court has required "that a plaintiff's complaint fall within the
zone of interests protected by the law invoked." Allen, 468 U.S.
_____
at 751. The Court has also demanded that, as a general rule, a
plaintiff "must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests
of third parties." Warth, 422 U.S. at 499.5 Finally, "the
_____
Court has refrained from adjudicating 'abstract questions of wide
public significance' which amount to 'generalized grievances,'
pervasively shared and most appropriately addressed in the
representative branches." Valley Forge, 454 U.S. at 475 (quoting
____________
Warth, 422 U.S. at 499-500).
_____
IV. THE METHODOLOGY OF REVIEW
IV. THE METHODOLOGY OF REVIEW
Before shining the light of these teachings on the case
at hand, we pause to discuss questions of methodology.
The burden of adducing facts necessary to support
standing rests squarely with the party seeking to avail itself of
federal jurisdiction. The Court has stated the proposition
unequivocally: "It is the responsibility of the complainant
____________________
5One exception to this general rule is that associations may
assert the claims of their members, provided that the members
have suffered some distinct and palpable injury. We discuss this
exception in greater detail infra.
_____
11
clearly to allege facts demonstrating that he is a proper party
to invoke judicial resolution of the dispute and the exercise of
the court's remedial powers." Warth, 422 U.S. at 518; accord
_____ ______
FW/PBS, 493 U.S. at 231; Munoz-Mendoza v. Pierce, 711 F.2d 421,
______ _____________ ______
425 (1st Cir. 1983). This burden pertains in full measure to an
intervenor who proposes to prosecute an appeal singlehandedly.
See Diamond, 476 U.S. at 68.
___ _______
In this instance, the intervenor's standing was
immaterial in the lower court. Once NWF filed a notice of
appeal, however, its standing (or lack thereof) took on critical
importance. The appellees promptly moved to dismiss the appeal
under 1st Cir. R. 27.1 (which empowers the court of appeals to
dismiss an appeal for either lack of jurisdiction or lack of a
substantial question). It is necessary, therefore, that we
explicate the method and mode of our consideration of such a
motion.
In addressing the appellees' motions to dismiss, we
steer by the Court's beacon. "For purposes of ruling on a motion
to dismiss for want of standing, both the trial and reviewing
courts must accept as true all material allegations of the
complaint, and must construe the complaint in favor of the
complaining party." Warth, 422 U.S. at 501; accord Lujan v.
_____ ______ _____
National Wildlife Fed'n, 110 S. Ct. 3177, 3189 (1990); NAACP,
________________________ ______
Boston Chapter v. Harris, 607 F.2d 514, 525 (1st Cir. 1979). In
______________ ______
practical effect, then, the standard is much the same as that
traditionally applied to motions to dismiss made under Fed. R.
12
Civ. P. 12(b)(6).6
This formulation does not mean, however, that a court
must (or should) accept every allegation made by the complainant,
no matter how conclusory or generalized. In connection with run-
of-the-mine motions brought under Rule 12(b)(6), a reviewing
court is obliged neither to "credit bald assertions, periphrastic
circum-locutions, unsubstantiated conclusions, or outright
vituperation," Correa-Martinez v. Arrillaga-Belendez, 903 F.2d
_______________ __________________
49, 52 (1st Cir. 1990), nor to honor subjective
characterizations, optimistic predictions, or problematic
suppositions. Dartmouth Review v. Dartmouth College, 889 F.2d
________________ _________________
13, 16 (1st Cir. 1989). "[E]mpirically unverifiable"
____________________
6Because the pending motions seek dismissal on the basis of
the pleadings, they are highly analogous to motions brought under
Fed. R. Civ. P. 12(b). Courts have often treated motions to
dismiss for want of standing as motions to dismiss for failure to
state a claim, thus bringing them under the rubric of Rule
12(b)(6). See, e.g., Rental Housing Assoc. of Greater Lynn v.
___ ____ _______________________________________
Hills, 548 F.2d 388, 391 (1st Cir. 1977); see also 5A Charles A.
_____ ___ ____
Wright & Arthur R. Miller, Federal Practice and Procedure 1360
______________________________
(2d ed. 1990). We recognize, of course, as the District of
Columbia Circuit has concluded, that Rule 12(b)(1) arguably
provides a closer analogy. See Hasse v. Sessions, 835 F.2d 902,
___ _____ ________
905-07 (D.C. Cir. 1987); see also Bordell v. General Elec. Co.,
___ ____ _______ __________________
922 F.2d 1057, 1058 (2d Cir. 1991); Cone Corp. v. Florida Dep't
__________ ______________
of Transp., 921 F.2d 1190, 1203 n.42 (11th Cir.), cert. denied,
__________ _____ ______
111 S. Ct. 2238 (1991); Xerox Corp. v. Genmoora Corp., 888 F.2d
___________ ______________
345, 350 (5th Cir. 1989). Nevertheless, we leave the ultimate
choice between Rules 12(b)(6) and 12(b)(1) for another day. In
the case at hand, none of the parties have asked us to apply the
jurisprudence of Rule 12(b)(1). Moreover, considering the
posture in which this case comes before us, and the fact that we
have gone beyond NWF's complaint in intervention in a record-wide
search for facts supporting its stance, the Rule 12(b)(6)
criterion is as favorable to NWF as any other criterion that
might conceivably be applied.
13
conclusions, not "logically compelled, or at least supported, by
the stated facts," deserve no deference. Id.
___
Although the legal standard for reviewing a motion
under Rule 12(b)(6) remains constant, the degree of specificity
with which the operative facts must be stated in the pleadings
varies depending on the case's context. Thus, there are various
classes of cases in which we have required a heightened degree of
specificity to withstand a motion to dismiss. See Garita Hotel
___ ____________
Ltd. Partnership v. Ponce Fed. Bank, ___ F.2d __, ___ & n.1 (1st
________________ _______________
Cir. 1992) [No. 91-1685, slip op. at 4 & n.1]; see also Miranda
___ ____ _______
v. Ponce Fed. Bank, 948 F.2d 41, 44 (1st Cir. 1991) ("a civil
_______________
RICO complaint must, at a bare minimum, state facts sufficient to
portray (i) specific instances of racketeering activity within
the reach of the RICO statute and (ii) a causal nexus between
that activity and the harm alleged"); Dewey v. University of New
_____ _________________
Hampshire, 694 F.2d 1, 3 (1st Cir. 1982) (a civil rights
_________
complaint must present more than "a general scenario which could
be dominated by unpleaded facts"), cert. denied, 461 U.S. 944
_____ ______
(1983). In such contexts, the burden of articulation is not a
mere formality.
This case, too, is elevated above the mine-run.
Because standing is fundamental to the ability to maintain a
suit, and because the Court has saddled the complainant with the
burden of clearly alleging facts sufficient to ground standing,
we are of the opinion that, where standing is at issue,
heightened specificity is obligatory at the pleading stage. The
14
resultant burden cannot be satisfied by purely conclusory
allegations or by a Micawberish reading of a party's generalized
averments. To the contrary, the proponent's pleadings "must be
something more than an ingenious academic exercise in the
conceivable." SCRAP, 412 U.S. at 688. The complainant must set
_____
forth reasonably definite factual allegations, either direct or
inferential, regarding each material element needed to sustain
standing. See Munoz-Mendoza, 711 F.2d at 425 ("Where 'injury'
___ _____________
and 'cause' are not obvious, the plaintiff must plead their
existence in his complaint with a fair degree of specificity.");
see generally Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st
___ _________ ______ _______________
Cir. 1988) (describing minimal allegations needed, in an ordinary
case, to survive Rule 12(b)(6) motion to dismiss). To borrow the
Court's phrase, the facts necessary to support standing must
clearly appear in the record and "cannot be 'inferred
argumentatively from averments in the pleadings.'" FW/PBS, 493
______
U.S. at 231 (quoting Grace v. American Cent. Ins., 109 U.S. 278,
_____ ___________________
284 (1883)).
It is with this rubric in mind that we inquire into
NWF's standing to maintain this appeal.7
____________________
7We categorically reject the idea that appellees waived the
right to question NWF's standing by not moving for summary
judgment in the district court. Standing implicates a court's
ability, consistent with the requirements of Article III, to hear
a case. Thus, a defect in standing cannot be waived; it must be
raised, either by the parties or by the court, whenever it
becomes apparent. See FW/PBS, 493 U.S. at 230-31. Moreover,
___ ______
inasmuch as permission to intervene and standing to appeal are
horses of two different hues, see Diamond, 476 U.S. at 68-69; see
___ _______ ___
also supra note 3 and accompanying text, there was no reason for
____ _____
the appellees to challenge the intervenor's standing until the
15
V. NWF'S STANDING TO APPEAL
V. NWF'S STANDING TO APPEAL
On appeal, NWF identifies two distinct injuries which,
it says, are sufficient to sustain standing. First, quoting from
its motion to intervene, it alleges that its members "have been
and continue to be harmed by the threats and damage to the
environment and to natural resources caused by PCBs and other
toxics and hazardous substances released into the New Bedford
Harbor area." Second, it alleges harm to its members and other
citizens attributable to the government's failure to comply with
certain procedural requirements imposed by CERCLA. We consider
these claims separately, after recounting some basic principles.
A. General Principles of Associational Standing.
A. General Principles of Associational Standing.
____________________________________________
It is well settled that, under certain circumstances,
an unincorporated association may premise standing upon injuries
suffered by some or all of its members. See UAW v. Brock, 477
___ ___ _____
U.S. 274, 281-82 (1986); Hunt v. Washington State Apple
____ ________________________
Advertising Comm'n, 432 U.S. 333, 342-43 (1977); Warth, 422 U.S.
___________________ _____
at 511. An association has standing to sue on behalf of its
members when three requisites have been fulfilled: (1) at least
one of the members possesses standing to sue in his or her own
right; (2) the interests that the suit seeks to vindicate are
pertinent to the objectives for which the organization was
formed; and (3) neither the claim asserted nor the relief
demanded necessitates the personal participation of affected
individuals. See Brock, 477 U.S. at 282; Hunt, 432 U.S. at 343;
___ _____ ____
____________________
appeal eventuated in its present posture.
16
CLF/NE, 950 F.2d at 41. These prerequisites for associational
______
standing ensure that Article III's case or controversy
requirement is satisfied in a given situation.
In the matter before us, affinity and personal
participation are not of particular concern. There is no
question that the interests which NWF seeks to safeguard are
"germane to the organization's purpose." Hunt, 432 U.S. at 343.
____
Likewise, nothing about the claims asserted or the relief
requested seems to require the involvement of particular
individuals as named plaintiffs. Thus, NWF's standing vel non
___ ___
rests on the first tine of the furcula: has NWF alleged an
injury to a member sufficient to meet the requirements of Article
III? Put another way, has the association shown "that its
members, or any one of them, are suffering immediate or
threatened injury as a result of the challenged action of the
sort that would make out a justiciable case had the members
themselves brought suit [?]" Warth, 422 U.S. at 511. We believe
_____
this question, in either phrasing, must be answered in the
negative.
B. Environmental Harm.
B. Environmental Harm.
__________________
NWF stated in its motion to intervene that it has
"79,000 members and supporters in Massachusetts." NWF further
claimed that its members "use and enjoy, through fishing,
swimming, recreational and other uses, the environment and
natural resources in the New Bedford Harbor [area]," and that its
"members have been and will continue to be harmed by the releases
17
that are the subject of [the] litigation." NWF has not
particularized these conclusory averments in any way. To the
contrary, in a manner hauntingly reminiscent of the unsuccessful
attempt of another environmental interest group to establish
standing in an earlier case, see Sierra Club v. Morton, 405 U.S.
___ ___________ ______
727, NWF makes only the most nebulous allegations regarding its
members' identities and their connection to the relevant
geographic area. Compare id. at 735 & n.8. Gauzy generalities
_______ ___
of this sort, unsubstantiated by any sort of factual foundation,
cannot survive a motion to dismiss. See Dartmouth Review, 889
___ ________________
F.2d at 16.
To be sure, unlike the plaintiff in Morton, NWF does
______
make a general allegation of actual injury to members. NWF
asserts that this generalized allegation of individual harm is
sufficient to withstand appellees' motions to dismiss. We
disagree. The averment has no substance: the members are
unidentified; their places of abode are not stated; the extent
and frequency of any individual use of the affected resources is
left open to surmise. In short, the asserted injury is not
anchored in any relevant particulars. The intervenor's papers do
not contain an averment, much less a particularized showing, of
the type of "concrete injury" that we have said is needed to
confer standing in an environmental suit. CLF/NE, 950 F.2d at
______
43. A barebones allegation, bereft of any vestige of a factual
fleshing-out, is precisely the sort of speculative argumentation
that cannot pass muster where standing is contested. See FW/PBS,
___ ______
18
493 U.S. at 231.
NWF urges that SCRAP, 412 U.S. 669, adumbrates a
_____
different result. But, although it is true that the SCRAP Court
_____
applied a liberal standard in reviewing claims of associational
standing, see id. at 687-90, NWF has failed to achieve even that
___ ___
minimal benchmark. In SCRAP, the complainant, an environmental
_____
organization, sued under the Administrative Procedure Act to
enjoin a rate surcharge approved by the Interstate Commerce
Commission.8 Id. at 685. The association consisted of five
___
members, all clearly identified, who lived in metropolitan
Washington. It was alleged that each member had suffered
specific economic, recreational, and aesthetic harm as a result
of illegal agency action, e.g., they were each forced to pay more
____
for finished products and to suffer decreased enjoyment in their
use of natural resources in the immediate area of their homes due
to the permitted modification in the rate structure. Id. at 678.
___
The Court found these allegations adequate to underbrace
standing. Id. at 689-90.
___
The contrast between SCRAP and the case before us could
_____
scarcely be more stark. In SCRAP, unlike here, the association
_____
consisted of a discrete number of identified individuals. In
SCRAP, unlike here, there was a geographic nexus; all the
_____
association's members resided in a single, defined metropolitan
____________________
8The Administrative Procedure Act takes a very permissive
view of standing, see 5 U.S.C. 702 (1988), imposing no
___
additional requirements beyond those inherent in Article III.
19
area, directly affected by the challenged action.9 In SCRAP,
_____
unlike here, economic damage to individual members was manifest.
In SCRAP, unlike here, the claimed environmental injury was tied
_____
to the particular pursuits of particular persons. We believe
these distinctions are of decretory significance. Even under
SCRAP's rather relaxed regime, we cannot find standing in the
_____
instant case.
We note, moreover, that the Court has lately limited
SCRAP to its particular facts, observing that SCRAP's "expansive
_____ _____
expression of what would suffice for [5 U.S.C.] 702 review . .
. has never since been emulated by this Court." Lujan, 110 S.
_____
Ct. at 3189. In light of Lujan, the continued vitality of SCRAP
_____ _____
as a divining rod for locating associational standing is highly
questionable. When, as here, an alleged injury involves the use
and enjoyment of natural resources, it is not enough, at least in
the post-Lujan era, that a plaintiff possesses some generalized,
_____
undifferentiated interest in preserving those resources. Rather,
as Professor Chemerinsky has concluded, a plaintiff, to secure
standing, "must show that he or she uses the specific property in
question." Erwin Chemerinsky, Federal Jurisdiction 2.3.2
_____________________
____________________
9To be sure, in moving to intervene, NWF alleged that it had
79,000 "members and supporters" in Massachusetts. But, it did
not name even one of them. It did not attempt to distinguish
between members and non-members. It did not restrict its claims
of harm to its local members. It did not mention whether any
members lived in close proximity to the harbor area. When one
contrasts a state the size of Massachusetts with the confined
geographic area of New Bedford Harbor, it is apparent that
residing in Massachusetts, without more, furnishes an inadequate
basis for a claim of particularized injury.
20
(Supp. 1990). No such showing has been made in the instant case.
For these reasons we find NWF's allegations of
environmental injury to be insufficiently specific to sustain a
claim of associational standing.
C. Procedural Harm.
C. Procedural Harm.
_______________
The second part of NWF's quest for standing involves a
claim that NWF's members were deprived of their full right to
comment on the consent decree because the plaintiffs failed to
comply with certain provisions of CERCLA. NWF argues that, since
the consent decree caps the defendants' payments, it effectively
determines the extent and scope of the "plan for remedial
action," thereby nullifying the public's statutorily guaranteed
"opportunity for submission of written and oral comments" prior
to "adoption" of such a plan. 42 U.S.C. 9617(a). As an
adjunct to this theme, NWF also argues that by failing to
promulgate a final cleanup plan before soliciting public comment
on the proposed consent decree, the federal government has
undermined the public's statutory right to provide meaningful
comment on the decree prior to "its entry by the court as a final
judgment." 42 U.S.C. 9622(d)(2)(B).
These somewhat convoluted contentions amount to an
overall claim of procedural harm. The claim comprises more cry
than wool. While harm resulting from an agency's refusal to
follow statutorily required procedures may in some instances
constitute an actual injury sufficient to confer Article III
standing, see Defenders of Wildlife v. Lujan, 911 F.2d 117, 121
___ ______________________ _____
21
(8th Cir. 1990), cert. granted, 111 S. Ct. 2008 (1991); Munoz-
_____ _______ ______
Mendoza, 711 F.2d at 428; cf. Sierra Club v. Marsh, 872 F.2d 497,
_______ ___ ___________ _____
504 (1st Cir. 1989), this is not such a case.
1. Previously Addressable Harm. In the first place,
1. Previously Addressable Harm.
___________________________
NWF appears to have waited too long to premise standing on a
theory of procedural harm. Contrary to appellant's bald-faced
assertions before us, its motion to intervene alleged only a
claim of environmental harm. The closest it came to an
_____________
allegation of procedural harm was to say in its motion that:
__________
There also exists, as already has been
demonstrated in the proposed decree, the
potential for the parties to "bargain away"
the interests of NWF and its members, which
is to assure that the remedy agreed to is
appropriate, protective of NWF and its
members, and in compliance with CERCLA.
We do not think that this general statement can be construed to
assert a claim of procedural harm to NWF's members bottomed upon
the denial of their right fully and effectively to comment under
42 U.S.C. 9617(a), 9622(d)(2)(B). Rather, the quoted
sentence, read in context, is an amplification of one of NWF's
substantive arguments nothing more.10
By the same token, NWF's conduct of the litigation
focused exclusively on its claims of environmental harm. Its
complaint in intervention sought relief only against the
____________________
10Indeed, we doubt whether this type of procedural harm is
consistent with, or falls within, the scope of the permitted
intervention which was limited, at NWF's own suggestion, to
legal issues concerning the measure of damages, the requirements
for cleanup, and the requirements for entering a consent decree.
See Acushnet, 712 F. Supp. at 1022-23. NWF's claim of procedural
___ ________
harm does not appear to fit within this taxonomy.
22
corporate defendants. Its response to the plaintiffs' motion for
entry of the consent decree neither mentioned nor alleged
abridgement of members' rights to comment. At the "decree
confirmation" hearing held in the district court, NWF's counsel
made only substantive arguments, eschewing any reference to the
incidence of a procedural injury. Because NWF failed in any way
to raise the issue of procedural harm in the court below,
notwithstanding that court's capability to redress such harm (if
any existed), NWF cannot now be allowed to predicate appellate
standing on that foundation.
2. Absence of Actual Injury. Even if appellant's
2. Absence of Actual Injury.
__________________________
claim of procedural harm were properly before us, it would not
salvage the day.
There is nothing talismanic about the phrase
"procedural harm." A party claiming under that rubric is not
relieved from compliance with the actual injury requirement for
standing. See, e.g., Munoz-Mendoza, 711 F.2d at 425-26
___ ____ _____________
(requiring, as a precondition to standing, that plaintiffs who
allege procedural harm also show "injury in fact"). Thus, one
who asserts procedural harm as the basis for standing must set
forth particulars that serve to indicate a distinct and palpable
injury. Warth, 422 U.S. at 501. Put bluntly, a party must set
_____
forth a sufficient panoply of facts to show that his injury is
real as opposed to being theoretical or abstract. See Capital
___ _______
Legal Found. v. Commodity Credit Corp., 711 F.2d 253, 258 (D.C.
____________ _______________________
Cir. 1983) (holding that a plaintiff's claim of injury stemming
23
from alleged procedural harm is insufficient to ground standing
where the harm is "uncoupled from any injury in fact, or tied
only to an undifferentiated injury common to all members of the
public"). In the case of an association, this translates to a
requirement that at least one of the organization's members is
"suffering immediate or threatened injury as a result of the
challenged action." Warth, 422 U.S. at 511.
_____
In this instance, NWF wholly failed to show, or even
supportably to allege, that any member suffered a cognizable
injury stemming from the supposedly inadequate opportunity to
comment. A mere inability to comment effectively or fully, in
and of itself, does not establish an actual injury.11 Here,
the actual injury, if there is any, can only stem from the
potential for an inadequate cleanup of the New Bedford Harbor
area rather than from an alleged impairment of the citizenry's
right to comment. It follows ineluctably that, in order for
standing to arise out of procedural harm, NWF must show that its
members have suffered, or are imminently in danger of, some
distinct and palpable injury flowing from the possibility of an
inadequate cleanup. Cf., e.g., Defenders of Wildlife, 911 F.2d
___ ____ ______________________
at 120-21 (refusal of Secretary of Interior to follow statutory
consultation procedures prior to issuing new regulations
____________________
11We assume, for argument's sake, but without deciding, that
appellant could show some curtailment in this respect. We note,
however, that appellant was afforded, and vociferously exercised,
a right to comment both administratively (before the federal
government moved for entry of the consent decree) and judicially
(when the district court held a hearing to consider placing its
imprimatur on the decree).
24
regarding Endangered Species Act constituted sufficient injury
for standing where plaintiff organization had established that it
had members who "had visited, and planned to visit again, the
endangered species or their habitat in the areas that may be
affected"); Munoz-Mendoza, 711 F.2d at 427-28 (failure of
_____________
Department of Housing and Urban Development to follow proper
procedure in approving a grant constituted sufficient injury for
standing only as to those plaintiffs who alleged that they lived
in the affected area, that their neighborhood was currently
integrated, that they had an interest in living in an integrated
neighborhood, and that the grant would skew the racial mix
through increased gentrification). As we have already
demonstrated, see supra Part V(B), NWF failed to make this
___ _____
showing.
In short, appellant cannot make an end run around the
requirement of actual injury. NWF bore a burden, to the extent
its standing was dependent on a claim of procedural harm, to limn
with fair specificity some concrete nexus between its members and
the harbor area. Without such a nexus, any procedural harm its
members suffered was common to all members of the public and,
therefore, did not rise to the level of stating an individualized
claim of harm. See Warth, 422 U.S. at 499; Schlesinger, 418 U.S.
___ _____ ___________
at 220; see also Erwin Chemerinsky, Federal Jurisdiction 2.3.5
___ ____ _____________________
(1989); 13 Charles A. Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice & Procedure 2d 3531.10 (1984).
___________________________________
Inasmuch as NWF failed to allege with the requisite particularity
25
that any of its members risked a distinct and palpable injury if
the cleanup of the harbor fared poorly, the allegation of
procedural harm portrayed an injury that was both hypothetical
and undifferentiated. Consequently, we find NWF's embryonic
allegations of procedural harm impuissant to sustain a claim of
associational standing. See Wilderness Society v. Griles, 824
___ __________________ ______
F.2d 4, 19 (D.C. Cir. 1987) (where plaintiffs lack standing to
challenge an agency's substantive actions, they similarly "lack
standing to challenge the procedural defects in the process that
produced those actions").
VI. CONCLUSION
VI. CONCLUSION
To recapitulate, NWF premised its intervention into
this remedial action on the divergence between its views and the
views of the named plaintiffs concerning the appropriate measure
of damages. NWF knew from the start that the district court
action might well end in the entry of a decree with which NWF
and NWF alone disagreed.12 NWF was on notice that, under the
clear mandate of Diamond v. Charles, 476 U.S. 54, it would be
_______ _______
unable to appeal such a decree without meeting the requirements
of federal standing. Despite its knowledge of these realities,
NWF chose to file a motion for intervention that contained only
the vaguest and most conclusory allegations in connection with
standing. And, although the appellees raised questions regarding
____________________
12NWF, it must be recalled, took pains to seek and obtain a
right of appeal from the district court. See Acushnet, 712 F.
___ ________
Supp. at 1023. This fact is significant because it indicates an
awareness, early on, that the district court proceedings might
well culminate in a decree satisfactory to everyone except NWF.
26
NWF's standing in their respective responses to the motion to
intervene, NWF elected not to supplement the record or otherwise
address these questions at any time during the long hiatus
between the filing of its motion to intervene and the district
court's approval of the consent decree. Against this backdrop of
inaction, NWF can scarcely be heard to complain when an easily
anticipated application of Article III results in the dismissal
of its appeal.
We need go no further. Because NWF has failed, despite
ample opportunity, to place in the record specific facts
sufficient to support standing, its appeal must be dismissed.
The appeal is dismissed for want of appellate
The appeal is dismissed for want of appellate
_______________________________________________________
jurisdiction. Costs to appellees.
jurisdiction. Costs to appellees.
____________ __________________
27